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Case Law (108)

This page contains relevant case law from federal and state courts concerning community water fluoridation and recent updates that may have had an effect on changes to current policies.

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Beck v. City Council of Beverly Hills

California, Unlicensed Practice of Medicine/Compulsory Medication, State police power

Plaintiff

Hermine Beck

Defendant

City Council of Beverly Hills

State

California

Other Parties

-

Case Tags

- Unlicensed Practice of Medicine/Compulsory Medication

- State police power

Citation

30 Cal. App. 3d 112; 106 Cal. Rptr. 163 (Cal. Ct. App. 1972)

Year

1972-00-00T00:00:00

Court Name

Court of Appeal of California, Second Appellate District

Abstract

-

Description of Legal Challenge

-

Opinion #

40140

Opinion Judges

Compton J, Roth PJ, Herndon J

Opinion Text

COMPTON, J.
Plaintiffs who are residents of the City of Beverly Hills by this action seek to enjoin the city council and various city officials from proceeding to fluoridate the municipal water supply.
The case reaches us on an appeal by the plaintiffs from a judgment of dismissal entered following the sustaining of a demurrer without leave to amend the second amended complaint.
On July 21, 1970, the Beverly Hills City Council adopted Resolution No. 70-R-4147 authorizing the addition of fluoride to the city's water supply. The resolution noted that the California State Board of Public Health had adopted the policy of approving controlled fluoridation of community water supplies as a valuable public health measure in reducing the occurrence of dental caries.
Following recitation of the demonstrated effectiveness and safety of fluoridation during the past quarter century in the United States, the council resolved to add fluoride to their water supply by authorizing the water department “... to apply to the State Board of Public Health for an amendment to the water permit of the City of Beverly Hills to allow the addition of fluoride to the water supply of the City of Beverly Hills in order to maintain in the City's water distribution system the optimum fluoride content designated in the amended permit and in the event said permit is so amended, to acquire and construct the necessary facilities ....”
Throughout their unsuccessful attempts (sic) survive a demurrer, plaintiffs have variously alleged that the city council abused its discretion because (1) federal and state government has preempted the field, (2) the city council failed to permit adequate opportunity for the opposition to be heard, (3) the city water supply already contains the optimum effective fluoride dosage, and (4) fluoridation of a public water supply violates the California Pharmacy Law and the Federal Food, Drug and Cosmetic Law.
Narrowed to its most concise and basic elements the complaint in essence alleges that the city council's procedure in adopting the resolution was improper and that fluoride, because it is a poison, may not be introduced into a public water supply without a prescription.
The Lawfulness of Fluoridation
(1) With respect to the claimed violation of state law in the fluoridation of a public water supply plaintiff points to the fact that fluorides have been listed under the Schedule of Poisons contained in section 4160, subdivision (c) of the Business and Professions Code. According to section 4161 such poisons must not be sold or furnished unless a poison or caution label is affixed, nor can they be sold to a person under 18 years of age (§ 4164). Wholesalers who sell to an “... established legitimate user in the chemical and technical arts” are exempt from the regulation (§ 4170). The act does not apply to sales on prescription (§ 4173).
“Fluorides intended, designed or recommended for internal use, or including directions for internal use, may be sold only on prescription, provided however that this regulation shall not apply to soluble fluorides labeled and sold in compliance with the provisions of Article 7, Chapter 9 of the Business and Professions Code.” (Cal. Admin. Code, tit. 16, § 1748.1, Cal. Py rmacy Rules and Regulations.)
Of course, the foregoing regulate the sale and distribution of Fluorides in their basic state and prior to their dilution. Those provisions do not regulate the sale or distribution of water. Plaintiff does not allege that acquisition of fluoride by the city has been or will be other than in compliance with the state law. The same can be said of the federal law. ( Froncek v. City of Milwaukee, 269 Wis. 276 [69 N.W.2d 242]; see also 17 Fed.Reg. 6732 (July 23, 1952).)
On the other hand Health and Safety Code, division 5, part 1, chapter 7, contains an extensive scheme for regulation of the distribution of water, which scheme gives to the State Board of Public Health the responsibility of insuring the purity and potability of water furnished for domestic use. This responsibility is discharged through a system of permits and inspections and by enforcement of Health and Safety Code section 4031 which provides: “It is unlawful for any person to furnish or supply to a user water used or intended to be used for human consumption or for domestic purposes which is impure, unwholesome, unpotable, polluted, or dangerous to health.”
Chemicals, which in their concentrated or basic state may be poisonous, are often introduced into water for the purpose of purification.
Plaintiffs have not alleged any facts indicating that the city or the State Board of Health have permitted or intend to permit the distribution of water which is impure or dangerous to the public health. The resolution itself directs that a permit be obtained from the State Board of Public Health before any steps are taken to fluoridate the water. We cannot presume that the board will act improperly or fail to perform its duty to insure that the condition of the water, as ultimately distributed, is one of purity and potability.
It appears that fluoridation of the water is not essential to its purification but is intended as a therapeutic measure.
While the statutory regulation of the quality of water furnished for human consumption is aimed at objectives of safety and potability rather than medication for therapeutic ends, it does not follow that the former precludes the congruent purpose of combating disease. (Hughes v. City of Lincoln, 232 Cal.App.2d 741 [ 43 Cal.Rptr. 306].)
Courts through the United States have uniformly held that fluoridation of water is a reasonable and proper exercise of the police power in the interest of public health. (42 Ops.Cal.Atty.Gen. 243; deAryan v. Butler, 119 Cal.App.2d 674 [ 260 P.2d 98]; Kraus v. Cleveland, 76 Ohio L.Abs. 214 [55 Ohio Ops. 36, 121 N.E.2d 311]; Kaul v. Chehalis, 45 Wn.2d 616 [277 P.2d 353]; Froncek v. City of Milwaukee, supra; Dowell v. Tulsa (Okla.) 273 P.2d 859 [43 A.L.R.2d 445].) The matter is no longer an open question.
(2) Plaintiffs complain that the resolution was brought to life through an abuse of governmental discretion in the enactment process. They complain that because of a delay in reaching its decision the council which passed the resolution had a different composition from that which held hearings on the issue. This, the plaintiffs contend, is tantamount to no hearing at all. There is, however, no requirement that a public hearing be held prior to enactment of such a resolution. Any such irregularity, if it be one, cannot amount to an abuse of legislative discretion sufficient to warrant judicial intrusion. ( Monarch Cablevision, Inc. v. City Council, 239 Cal.App.2d 206 [ 48 Cal.Rptr. 550]; Franchise Tax Board v. Superior Court, 36 Cal.2d 538 [225 P.2d 905].)
The judgment is affirmed.
Roth, P. J., and Herndon, J., concurred.

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Coshow v. City of Escondido

California, Due Process Violations, Push for FDA Approval, Right to privacy, State police power, Unlicensed Practice of Medicine/Compulsory Medication, Violation of Fundamental Liberties

Plaintiff

Paul Coshow et al.

Defendant

City of Escondido

State

California

Other Parties

-

Case Tags

- Due Process Violations

- Push for FDA Approval

- Right to privacy

- State police power

- Unlicensed Practice of Medicine/Compulsory Medication

- Violation of Fundamental Liberties

Citation

132 Cal. App. 4th 687; 34 Cal. Rptr. 3d 19 (Cal. Ct. App. 2005)

Year

2005-00-00T00:00:00

Court Name

Court of Appeals of California, Fourth Appellate District

Abstract

-

Description of Legal Challenge

-

Opinion #

D045382

Opinion Judges

Haller J, McConnell PJ, Irion J concurring

Opinion Text

HALLER, J.
Paul Coshow and several other residents of Escondido, California FN1 (collectively Coshow) sued the City of Escondido (City) and the California Department of Health Services (Department) for declaratory and injunctive relief, challenging the City's plan to fluoridate its drinking water with hydrofluorosilicic acid (HFSA) and claiming the use of HFSA violates their constitutional rights and exposes the general public to unnecessary health risks. The court granted judgment on the pleadings in favor of City and Department after finding Coshow failed to state a cause of action for declaratory or injunctive relief.
FN1. In addition to Coshow, the plaintiffs are Robin Winton, Sabrina Gese, Owen Morrison, Dottie Glen, Al McGowen and Jim Petersen, suing on behalf of themselves, the general public and all persons similarly situated. Shirley Macy was a plaintiff but is not a party in this appeal.
Coshow appeals, contending: (1) the court erred by granting judgment on the pleadings based on motions in limine filed by City and Department; (2) he had standing to challenge City's unconstitutional conduct and its impermissible expenditure of public funds under Code of Civil Procedure sections 1060 and 526a; (3) his fourth amended complaint alleged violations of fundamental constitutional rights to privacy and bodily integrity under the federal and state Constitutions; (4) the court erred by refusing to consider allegations that HFSA is a drug which the Federal Food and Drug Administration (FDA) has not approved for the prevention of dental caries; (5) the court erred by refusing to consider allegations that use of HFSA to fluoridate City's drinking water violates Penal Code section 374.8; and (6) the court's factual findings are unsupported by the evidence and were improperly applied to grant judgment on the pleadings.
Accepting, as we must, the truth of the allegations of Coshow's complaint, we conclude Coshow cannot state a cause of action for violations of fundamental constitutional rights or a violation of Penal Code section 374.8. Accordingly, we affirm the judgment.FN2
FN2. We deny Coshow's request for judicial notice of (1) Blackstone, Commentaries on the Laws of England, vol. 1 (1765), pp. 125-130; and (2) a statement by the FDA regarding the use of fluoride in drinking water and drug products.
FACTUAL AND PROCEDURAL BACKGROUND
City operates a community water system serving about 130,000 people through nearly 25,000 service connections. In June 2001, City directed its staff to implement a fluoridation plan in compliance with the California Safe Drinking Water Act (SDWA) (Health & Saf.Code, FN3 § 116270 et seq.), which requires fluoridation of each public water system having at least 10,000 service connections. (§ 116410, subd. (a).)
FN3. Statutory references are to the Health and Safety Code unless otherwise specified.
In September 2001, Coshow filed a complaint for declaratory relief, alleging City's plan to fluoridate its water was unconstitutional and illegal because mass fluoridation of the water supply presents a reasonable certainty of harm to City's residents, including permanent dental scarring, genetic damage, cancer and other ailments. In a first amended complaint filed in December 2001, Coshow alleged a single cause of action for declaratory relief against City, challenging the constitutionality of fluoridating City's water supply and seeking a judicial determination as to whether City's decision to implement a fluoridation plan was constitutionally permissible. City demurred to the first amended complaint and the court sustained the demurrer with leave to amend.
Coshow filed a second amended complaint in April 2002, adding the State of California as a defendant and seeking declaratory and injunctive relief as to the constitutionality of City's decision to fluoridate its drinking water. The court overruled City's demurrer in part and sustained it in part with leave to amend.
In September 2002, Coshow filed a third amended complaint against City and the State of California, this time challenging the constitutionality of City's use of HFSA to fluoridate its water supply and alleging City violated his fundamental right “to preserve [his] health from such government-imposed practices as may prejudice or annoy it.” City answered the complaint and the State of California demurred. Based on Coshow's representation he was not making a facial challenge to the legislation mandating the fluoridation of City's drinking water, the court overruled the demurrer in part and sustained it in part, giving Coshow leave to amend to name the proper state agency involved, to clarify the nature of his claim against that entity and to specify the particular legislation involved.
In October 2002, City submitted an application to Department to amend City's domestic water supply permit to begin fluoridation. While this lawsuit was pending, Department approved City's application. Department determined City's plan, including use of HFSA, complied with requirements of all applicable state drinking water laws and regulations.
In January 2003, Coshow filed a fourth amended complaint, the relevant pleading here, again challenging the constitutionality of using contaminated, industrial-grade HFSA to fluoridate City's public water supply. As to City, Coshow sought a declaration that: (1) the implementation of City's fluoridation plan to use contaminated HFSA, without his informed consent, violates his fundamental rights under the state and federal Constitutions to be free from such government-imposed practices as may prejudice or annoy his health; and (2) the fluoride implementation contracts signed by City are illegal and void because they violate his constitutional rights. Coshow further alleged City's fluoridation plan violates Penal Code section 374.8 and is an illegal expenditure of public funds, warranting injunctive relief. As to Department, Coshow alleged its conduct in requiring, approving and permitting City to fluoridate its water with contaminated HFSA is illegal under Penal Code section 374.8 and unconstitutional as applied to the facts of this case.
City and Department filed motions for summary adjudication of claims and summary judgment, primarily arguing City's fluoridation plan complied fully with the SDWA and its implementing regulations and thus, no triable issue of fact existed as to Coshow's claims. In his opposition, Coshow abandoned his earlier claim the City's plan would result in an excessive concentration of fluoride in the drinking water and instead claimed HFSA is hazardous waste because it contains trace levels of lead and arsenic, thereby making City's fluoridation plan illegal and harmful to the public health, and unconstitutional as an infringement of bodily integrity. The court denied City's and Department's motions.
The parties then filed trial briefs and pre-trial motions, including numerous motions in limine. The court ruled on the parties' motions in limine, heard argument on Coshow's constitutional allegations and continued the trial. After receiving additional briefing on the constitutional issues, the court: (1) excluded evidence concerning Coshow's allegations that HFSA has not been approved by the FDA; (2) found the fourth amended complaint did not allege a claim under article I, section 1 of the California Constitution for violation of the right to privacy; and (3) denied Coshow's request for leave to amend. The court also found the only potential theories of constitutional liability were the alleged substantive due process violations as to “conduct which impacts a fundamental right (here, the right to be free from the introduction of an allegedly toxic substance, HFSA, into the municipal drinking water, i.e., toxic for reasons other than [ ] merely containing fluoride)....”
Following that ruling, Coshow sought an order setting a hearing to address the state of trial evidence. Coshow attached exhibits, including copies of Department's final approval of City's application for a permit amendment to begin fluoridation, the permit amendment and Department's engineering report on City's application.
The parties filed additional motions in limine as to the remaining constitutional issues, including City's motion to dismiss Coshow's constitutional claims and Department's motion to dismiss any claims under Penal Code section 374.8. The court issued an order construing City's and Department's motions as a motion for judgment on the pleadings and concluded as a matter of law that Coshow failed to state causes of action for declaratory or injunctive relief.
DISCUSSION
I
The Court Properly Treated Motions in Limine as a Motion for Judgment on the Pleadings
Coshow contends the court erred by granting judgment on the pleadings based on motions in limine filed by City and Department. He asserts Code of Civil Procedure section 1008 was the exclusive vehicle for reconsideration of issues previously decided on demurrer and summary judgment and there is no authority for the “irregular” procedure used here to obtain a dismissal of his claims through a motion in limine.
A court's inherent powers to control litigation and conserve judicial resources authorize it to conduct hearings and formulate rules of procedure as justice may require. (Walker v. Superior Court (1991) 53 Cal.3d 257, 267-268, 279 Cal.Rptr. 576, 807 P.2d 418; Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377, 5 Cal.Rptr.2d 882.) Exercising these powers, the court may enter judgment in favor of a defendant when motions in limine show that, “ ‘even if the plaintiff's allegations were proved, they would not establish a cause of action.’ ” (Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 285, 54 Cal.Rptr.2d 655; see also Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 676-677, 78 Cal.Rptr.2d 225.)
Here, the motions in limine, although directed at particular items of Coshow's evidence, had the cumulative effect of an objection to all evidence on the ground Coshow failed to state any cause of action, entitling City and Department to judgment as a matter of law. (Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451-452, 238 Cal.Rptr. 339.) Although the court previously overruled City's and Department's demurrers and denied their motions for summary adjudication of claims and summary judgment, those rulings did not deprive the court of its inherent power to grant judgment on the pleadings if it believed Coshow's allegations, even if proved, would not establish a cause of action. Indeed, it is not uncommon that as a case proceeds to trial and additional discovery is conducted, evidence is revealed which will either substantiate or disprove a cause of action. Once the court here sustained various objections to Coshow's evidence, no viable cause of action remained. Thus, the court properly exercised its inherent powers over the proceedings by construing the motions in limine as a motion for judgment on the pleadings. (Lucas v. County of Los Angeles, supra, 47 Cal.App.4th at p. 285, 54 Cal.Rptr.2d 655.)
Moreover, Code of Civil Procedure section 1008 governs a party's ability to renew a motion, not a court's inherent power to reconsider its rulings. (See People v. Castello (1998) 65 Cal.App.4th 1242, 1248, 77 Cal.Rptr.2d 314 [court's inherent powers are wide and include authority to rehear or reconsider rulings]; Gailing v. Rose, Klein & Marias (1996) 43 Cal.App.4th 1570, 1579, 51 Cal.Rptr.2d 381.) Indeed, a court has complete power to change its decision until judgment is entered. (APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181, 90 Cal.Rptr.2d 171; Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1237-1238, 58 Cal.Rptr.2d 217.) Contrary to Coshow's assertion, Code of Civil Procedure section 1008 did not prevent the court here from revisiting issues of law previously raised or from considering motions in limine as a basis to grant judgment on the pleadings. (See Community Memorial Hospital v. County of Ventura (1996) 50 Cal.App.4th 199, 204-205, 56 Cal.Rptr.2d 732 [Code of Civil Procedure section 1008 is inapplicable if issue of law is the same but motion is different].)
II
Standard of Review
Judgment on the pleadings is similar to a demurrer and is properly granted when the “complaint does not state facts sufficient to constitute a cause of action against [the] defendant.” (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii); Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254, 2 Cal.Rptr.3d 739; Rolfe v. California Transportation Com. (2002) 104 Cal.App.4th 239, 242, 127 Cal.Rptr.2d 871.) The grounds for the motion must appear on the face of the challenged pleading or from matters that may be judicially noticed. (Code Civ. Proc., § 438, subd. (d).) The trial court accepts as true all material facts properly pleaded but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts which are judicially noticed. (Shea Homes Limited Partnership v. County of Alameda, supra, 110 Cal.App.4th at p. 1254, 2 Cal.Rptr.3d 739.)
We independently review the trial court's ruling on a motion for judgment on the pleadings to determine whether the complaint states a cause of action. In so doing, we accept as true the plaintiff's factual allegations and construe them liberally. (Rolfe v. California Transportation Com., supra, 104 Cal.App.4th at pp. 242-243, 127 Cal.Rptr.2d 871.) If a judgment on the pleadings is correct upon any theory of law applicable to the case, we will affirm it regardless of the considerations used by the trial court to reach its conclusion. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216, 70 Cal.Rptr.2d 745.)
III
Coshow Cannot State a Cause of Action for Declaratory or Injunctive Relief Based on a Violation of a Fundamental Constitutional Right
Coshow contends he stated a cause of action for violation of a fundamental constitutional right by alleging City's conduct of dumping dangerous levels of arsenic into the public water supply severely and negatively impacts his bodily integrity and that of every other citizen served by City's water supply. He asserts he is being forced, without his consent, to drink the municipal water containing a drug-HFSA-that has never been tested or approved by the FDA to treat dental caries and which is dangerous to his health and the health of other residents.FN4
FN4. Coshow also contends the court erred by finding he had no standing to seek declaratory and injunctive relief under Code of Civil Procedure sections 526a and 1060. However, the record shows the trial court did not base its ruling on lack of standing to challenge the constitutionality of government conduct, but rather on the ground Coshow's fourth amended complaint failed to state causes of action for declaratory or injunctive relief based on a violation of a fundamental constitutional right. In any event, because we address the merits of Coshow's constitutional challenge, we need not decide the issue of standing.
A
The Safe Drinking Water Act and Its Implementing Regulations
Congress enacted the Safe Drinking Water Act (federal SDWA) (42 U.S.C., § 300f et seq.) in 1974 to establish uniform quality standards for the public water systems in the United States and to reduce contamination in drinking water. The federal SDWA prohibits states from enacting drinking water laws less stringent than those established by the Environmental Protection Agency (EPA). (42 U.S.C., § 300g.)
In 1976, the Legislature enacted California's SDWA, declaring water delivered by public water systems in this state should be at all times pure, wholesome and potable, and adopting procedures to be followed in an effort to accomplish this objective. (Stats.1976, ch. 1087, § 2.5, pp. 4918-4929, adding former § 4010 et seq., currently codified in § 116270 et seq.; see Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256, 268, 115 Cal.Rptr.2d 874, 38 P.3d 1098; Paredes v. County of Fresno (1988) 203 Cal.App.3d 1, 5, 249 Cal.Rptr. 593.) The SDWA was meant to reduce to the lowest level feasible all concentrations of toxic chemicals in drinking water that may cause cancer, birth defects and other chronic diseases. (§ 116270, subd. (d).) In this regard, the SDWA “establishes standards at least as stringent as the federal SDWA and is intended to be ‘more protective of public health’ than the minimum federal standards.” (Hartwell Corp. v. Superior Court, supra, 27 Cal.4th at p. 268, 115 Cal.Rptr.2d 874, 38 P.3d 1098, citing §§ 116270, subd. (f), 116325.) Because the SDWA is a remedial act intended to protect the public from contamination of its drinking water, we are required to construe it broadly to accomplish its protective purpose. (Western States Petroleum Assn. v. State. Dept. of Health Services (2002) 99 Cal.App.4th 999, 1008, 122 Cal.Rptr.2d 117.)
In the SDWA, the Legislature delegated to Department “the initial and primary authority, and the corresponding responsibility, for establishing drinking water standards. (§§ 116270, subd. (g), 116275, subds. (c) & (d); see also § 116610, subds. (c) & (d).) Courts must respect this primary delegation of authority.” (Western States Petroleum Assn. v. State. Dept. of Health Services, supra, 99 Cal.App.4th at p. 1008, 122 Cal.Rptr.2d 117.) One of Department's responsibilities under the SDWA is to establish “primary drinking water standards that include the maximum levels of contaminants which, in [its] judgment, may have an adverse effect on the health of persons.” (Id. at p. 1002, 122 Cal.Rptr.2d 117, citing §§ 116275, subd. (b), 116365.) Department is also responsible for reviewing and revising public health goals for contaminants in drinking water, including preparing health risk assessments for any contaminants deemed carcinogenic or acutely toxic. (§§ 116360, 116365, 116375.) With respect to acutely toxic substances, the maximum contaminant level (MCL) is set at a level that will avoid any known or anticipated adverse effects on public health with an adequate margin of safety. (§ 116365, subd. (a)(1).) With respect to carcinogens, the MCL is set at a level that will avoid any risk to public health. (§ 116365, subd. (a)(2); see also Cal.Code Regs., tit. 22, §§ 64431 [MCL for inorganic chemicals], 64444 [MCL for organic chemicals].) City is required to ensure its public water system complies with the primary and secondary drinking water standards established by Department. (§ 116555, subd. (a)(1).) To ensure these standards are met, the SDWA provides comprehensive administrative procedures for the issuance of permits to operate public water systems (§§ 116525-116580), regulation of the quality of the water supply (§§ 116325-116395), enforcement of regulations and correction of violations (§§ 116625-116655), judicial review (§ 116700) and imposition of civil and criminal penalties (§§ 116725, 116730).
Effective September 29, 1996, section 116410 was added to the SDWA, requiring public water systems with at least 10,000 service connections to be fluoridated “to promote the public health of Californians of all ages through the protection and maintenance of dental health, a paramount issue of statewide concern.” (§ 116410, subd. (a).) This provision requires Department to adopt regulations mandating the fluoridation of public water systems. (Ibid.) FN5 The SDWA also prescribes the administrative procedure to be followed when a public water system intends to fluoridate its drinking water, including an application to amend the water system's existing permit (§ 116550, subd. (a)), investigation of the proposed plan by Department (§ 116535), a public hearing on the application (§ 116545) and Department's denial or issuance of a permit amendment, including any conditions necessary to assure pure, wholesome water that does not endanger the health of consumers (§ 116540).
FN5. These regulations, adopted by City and other public water systems, are contained in California Code of Regulations, title 22, section 64433.3 et seq.
Although fluoridation has been and continues to be a controversial issue, “[c]ourts through[out] the United States have uniformly held that fluoridation of water is a reasonable and proper exercise of the police power in the interest of public health. [Citations.] The matter is no longer an open question.” (Beck v. City Council of Beverly Hills (1973) 30 Cal.App.3d 112, 115, 106 Cal.Rptr. 163; see also deAryan v. Butler (1953) 119 Cal.App.2d 674, 682, 260 P.2d 98 [addition of fluoride to water supply, as directed by resolution of city council, was valid exercise of police power of City of San Diego].)
The manner of fluoridation, challenged by Coshow in this case, is also prescribed by the SDWA and its implementing regulations, which mandate the concentration of fluoride in drinking water supplied to the public. (§ 116410, subds.(a), (b)(1) & (2).) For example, the regulations adopted by Department set forth the optimal fluoride levels based on daily air temperatures (Cal.Code Regs., tit. 22, § 64433.2), the MCL's for inorganic chemicals such as fluoride and arsenic (Cal.Code Regs., tit. 22, § 64431, subd. (a)), and the detection limits for purposes of reporting contaminants such as lead (Cal.Code Regs., tit. 22, § 64678, subd. (a)). Additionally, the regulations contain extensive monitoring and compliance requirements (Cal.Code Regs., tit. 22, § 64433.3) and impose stringent record-keeping, reporting and notification requirements for fluoridating water systems (Cal.Code Regs., tit. 22, § 64433.7). Although the SDWA and its implementing regulations provide specific mechanisms to ensure the drinking water is safe for all consumers, including City's residents, the water need not be completely free of contaminants for which there are MCL's and detection limits. “While pure water is an objective of the state, statutory and regulatory standards do not require that water be entirely pure; and few, if any, water supplies are entirely clear of a broad range of contaminants. (See Cal.Code Regs., tit. 22, §§ 64444, 64449, 64450.)” (Western States Petroleum Assn. v. State. Dept. of Health Services, supra, 99 Cal.App.4th at p. 1015, 122 Cal.Rptr.2d 117.)
Before a particular chemical is added to drinking water as part of the treatment process, it must first be tested and certified as meeting the specifications of the American National Standard Institute/National Sanitation Foundation Standard 60 (ANSI/NSF 60). (Cal.Code Regs., tit. 22, § 64700, subd. (a).) HFSA meets this standard as an approved chemical additive under the regulations, and Coshow does not claim otherwise. (See Commonwealth of PA., Dept. of Env. Res. v. Bierman (1976) 23 Pa.Cmwlth. 646, 354 A.2d 48, 50-51 [use of HFSA to fluoridate public water supply was not “prejudicial to public health”].) Thus, the statutory and regulatory schemes allow fluoridating agents, including HFSA, to contain contaminants (such as arsenic and lead) as long as those agents comply with MCL's and detection limits.
B
City's Choice of HFSA as a Fluoridation Agent is a Legislative Function
Coshow does not challenge Department's broad statutory authority, mandated by express legislative directive, to choose a method for fluoridation or to determine the level of contamination in City's drinking water. (See Western States Petroleum Assn. v. State. Dept. of Health Services, supra, 99 Cal.App.4th at p. 1011, 122 Cal.Rptr.2d 117 [if the maximum contaminant level set by Department is not arbitrary and capricious, it is not inconsistent with Department's statutory authority].) Instead, Coshow contends he was entitled to a declaratory judgment that City's admitted conduct of “discharging arsenic into the water,” through the use of HFSA as required and approved by Department, violates his fundamental constitutional rights. Regardless of how Coshow frames his argument, his objection is, in essence, to the particular chemical chosen to comply with the legislatively mandated fluoridation plan. FN6 However, that choice necessarily involved a determination and weighing of facts and policies pertaining to fluoridation of water supplies. “This is a distinctively legislative process, and a court does not have the authority to exercise its independent judgment with respect to the performance of legislative functions.” (Western States Petroleum Assn. v. State. Dept. of Health Services, supra, 99 Cal.App.4th at p. 1007, 122 Cal.Rptr.2d 117; see also Hughes v. City of Lincoln (1965) 232 Cal.App.2d 741, 747, 43 Cal.Rptr. 306 [decision to fluoridate is legislative rather than administrative].)
FN6. Indeed, this is shown in Coshow's opposition to City's and Department's motions in limine to dismiss claims, where he argued HFSA “is extremely dangerous as being harmful to health and there are safe and effective alternatives in the form of [s]odium [f]luoride available at the same cost ... but without the same harmful invasion of one's bodily integrity.”
The SDWA itself empowers Department to approve methods of fluoridation. (§ 116410, subd. (a).) Department's selection of a particular tested and certified fluoridation chemical is made in the context of a comprehensive and highly regulated statutory scheme with a goal of providing pure, wholesome and potable water. Water quality standards are the product of Department study and expertise. (Hartwell Corp. v. Superior Court, supra, 27 Cal.4th at p. 271, 115 Cal.Rptr.2d 874, 38 P.3d 1098.) We cannot reweigh the various considerations, guided by stringent regulations, which led to Department's choice of HFSA and to City's approval of that choice.
The record shows Coshow sued City in September 2001 after it directed its staff to implement a fluoridation plan in compliance with the SDWA but before City applied to Department for a permit to begin fluoridation. Coshow initially challenged the constitutionality of fluoridation in general, but when unsuccessful on that ground, Coshow's lawsuit evolved into a challenge to the particular fluoridation chemical used (HFSA). At no time before the issuance of the permit in July 2004 did Coshow voice his concern about the dangers of using HFSA or request a hearing on City's permit application under section 116545 to investigate whether using HFSA would exceed the MCL's of any primary drinking water standard or public health goal, including those for arsenic and lead, under section 116365. Moreover, the record does not show Coshow submitted to Department, for its consideration in connection with City's application for a permit, any of the extensive information about the risks and dangers of HFSA that he alleged in, and attached as exhibits to, his fourth amended complaint. In light of the comprehensive procedures and remedies established by the SDWA to ensure public water systems deliver pure and safe water to their consumers, any challenge to the propriety of using HFSA to fluoridate the water should have been made at the administrative level.
Coshow Cannot State a Claim for Violation of the Right to Privacy or Bodily Integrity
In an attempt to state a cause of action for declaratory and injunctive relief based on a constitutional violation, Coshow characterizes City's fluoridation plan as “forced medication” with potential adverse consequences to human health, or with a chemical that has not been approved by the FDA for such medicinal purposes, thereby implicating his fundamental rights to bodily integrity and privacy under the Ninth and Fourteenth Amendments to the United States Constitution and article I, section 7 of the California Constitution. He claims the right to be free from forced medication contaminated with arsenic is a fundamental one, requiring strict scrutiny review.
1. No fundamental constitutional right is involved here
The guarantee of due process of law includes a substantive component which prohibits the government from infringing on certain “fundamental” liberty interests unless the infringement is narrowly tailored to serve a compelling state interest. (Washington v. Glucksberg (1997) 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772; Reno v. Flores (1993) 507 U.S. 292, 301-302, 113 S.Ct. 1439, 123 L.Ed.2d 1.) An analysis of whether a fundamental right has been violated begins with a “careful description” of the asserted fundamental liberty interest because “ ‘the doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.’ ” (Reno v. Flores, supra, 507 U.S. at p. 302, 113 S.Ct. 1439; Washington v. Glucksberg, supra, 521 U.S. at p. 721, 117 S.Ct. 2258; Chavez v. Martinez (2003) 538 U.S. 760, 776, 123 S.Ct. 1994, 155 L.Ed.2d 984 [vague generalities, such as “ ‘the right not to be talked to,’ ” are insufficient].) Only rights “ ‘deeply rooted in this Nation's history and tradition’ ” and “ ‘implicit in the concept of ordered liberty’ ” are recognized as fundamental. (Washington v. Glucksberg, supra, 521 U.S. at p. 721, 117 S.Ct. 2258; Moore v. East Cleveland (1977) 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531.)
In his fourth amended complaint, Coshow alleges City's use of HFSA to fluoridate the public drinking water violates his fundamental right “to preserve [his] health from such government-imposed practices as may prejudice or annoy it.” However, given this vague and general assertion of a fundamental liberty interest, we must heed the Supreme Court's advice against expanding “the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” (Collins v. Harker Heights (1992) 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261.) When we view the asserted right in the factual context of this case, it is evident Coshow is seeking to establish a right to public drinking water of a certain quality or, more specifically, a right to drinking water uncontaminated with HFSA.
In determining whether this right is fundamental, we do not compare its “relative societal significance” to other public entitlements, nor do we consider whether public drinking water free of HFSA is as important a right as any other constitutionally protected right. (San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 33, 93 S.Ct. 1278, 36 L.Ed.2d 16.) Rather, we assess whether there is such a right “explicitly or implicitly guaranteed by the Constitution.” (Id. at pp. 33-34, 93 S.Ct. 1278.) We conclude no such fundamental right exists.
The mere novelty of claiming a fundamental right to public drinking water free of HFSA is sufficient to create a doubt whether such a right is protected by substantive due process because it is not “ ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” (United States v. Salerno (1987) 481 U.S. 739, 750-751, 107 S.Ct. 2095, 95 L.Ed.2d 697; Reno v. Flores, supra, 507 U.S. at p. 303, 113 S.Ct. 1439.) The Legislature's deliberate choice to fluoridate the state's drinking water despite the presence of certain contaminants in the fluoridation process likewise compels the conclusion the right to drinking water free of HFSA is not a fundamental one explicitly or implicitly guaranteed by the Constitution. (Concerned Citizens of Nebraska v. U.S. Nuc. Reg. (8th Cir.1992) 970 F.2d 421, 426-427.) As we previously discussed, courts throughout the United States have uniformly upheld the constitutionality of adding fluoride to the public water supply as a reasonable and proper exercise of the police power in the interest of public health. (Beck v. City Council of Beverly Hills, supra, 30 Cal.App.3d at p. 115, 106 Cal.Rptr. 163.) No court has recognized a substantive due process claim entitling citizens to drinking water in a form more pure than that required by federal and state drinking water standards.
There is no dispute the right to bodily integrity is a fundamental right which limits the traditional police powers of the state in the context of public health measures under the federal and state Constitutions. (Jacobson v. Massachusetts (1905) 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643; Cruzan v. Director, Missouri Dept. of Health (1990) 497 U.S. 261, 278, 110 S.Ct. 2841, 111 L.Ed.2d 224; Conservatorship of Wendland (2001) 26 Cal.4th 519, 530, 110 Cal.Rptr.2d 412, 28 P.3d 151 [competent adult has the right to refuse medical treatment].) FN7 However, the right to bodily integrity is not coextensive with the right to be free from the introduction of an allegedly contaminated substance in the public drinking water. Neither the state nor federal Constitution guarantees a right to a healthful or contaminant-free environment. (Concerned Citizens of Nebraska v. U.S. Nuc. Reg., supra, 970 F.2d at pp. 426-427 [no fundamental right to be free of non-naturally occurring radiation]; In re Agent Orange Product Liability Litigation (E.D.N.Y.1979) 475 F.Supp. 928, 934 [no constitutional right to healthful environment based on spraying foliage with chemical agents]; Gasper v. Louisiana Stadium & Exposition District (E.D.La.1976) 418 F.Supp. 716, 721 [no fundamental right to breathe clean air free of tobacco smoke].) Although Coshow alleged he had a fundamental right to bodily integrity, there simply is no such right in the context of public drinking water.FN8 In this regard, Coshow has identified no particular fundamental right which he claims City and Department have infringed by their approval and use of HFSA to fluoridate the drinking water.
FN7. Contrary to Coshow's argument on appeal, the trial court did not conclude the right to bodily integrity is not a fundamental right. Rather, the court concluded Coshow alleged “a right to safe drinking water and/or a toxic-free environment,” which has not been recognized as a fundamental constitutional right.
FN8. For similar reasons, Coshow's constitutional right to privacy is not at issue here. The cases on which Coshow relies, including Roe v. Wade (1973) 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, do not apply in the context of public drinking water.
2. Fluoridation using HFSA is not forced medication
Coshow contends he is being forced, without his consent, to drink the municipal water containing a drug which has never been tested or approved by the FDA to treat dental caries and which is dangerous to his health and the health of other residents because of the high levels of arsenic in HFSA. He asserts the use of municipal water as the drug delivery system is forced medication in violation of his constitutional rights.
“ ‘[A] competent adult has the right to refuse medical treatment, even treatment necessary to sustain life.’ ” ( In re Qawi (2004) 32 Cal.4th 1, 14, 7 Cal.Rptr.3d 780, 81 P.3d 224; Cruzan v. Director, Missouri Dept. of Health, supra, 497 U.S. at p. 278, 110 S.Ct. 2841.) However, the right to be free from forced medication is not a fundamental constitutional right in the context of adding fluoride or other chemicals to public drinking water. City's use of HFSA to fluoridate its drinking water does not force Coshow to do anything. Fluoridation occurs before it enters each household and stops with the water faucet. The HFSA in the water is not directly introduced into Coshow's or other residents' bloodstreams. Because Coshow is not compelled to drink the fluoridated water, his freedom to choose not to ingest HFSA remains intact. (See Quiles v. City of Boynton Beach (Fla.App.2001) 802 So.2d 397, 399 [water fluoridation did not violate plaintiff's constitutional right to refuse medical treatment]; Kraus v. Cleveland (1955) 163 Ohio St. 559, 127 N.E.2d 609, 613 [fluoridation does not constitute mass medication].)
Fluoridating public drinking water with approved chemicals (such as HFSA) is clearly distinguishable from the invasive and highly personalized medical treatments used in cases where the state sought to override a person's freedom to choose and where the Supreme Court has recognized a liberty interest in freedom from such unwanted medical treatment. (See Sell v. United States (2003) 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 [forced administration of antipsychotic drugs on criminal defendant]; Riggins v. Nevada (1992) 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 [same]; Cruzan v. Director, Missouri Dept. of Health, supra, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 [use of life-sustaining medical treatment for an individual unable to decline the treatment]; Jacobson v. Massachusetts, supra, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 [mandatory smallpox vaccination]; In re Qawi, supra, 32 Cal.4th 1, 7 Cal.Rptr.3d 780, 81 P.3d 224 [right to refuse antipsychotic medication].) Unlike cases that “involve the state's power to physically force ‘artificial life-support’ directly into the body of an individual claiming the right to refuse such treatment,” supplying fluoridated water using HFSA is not a medical procedure which is subject to constitutional protections. (Quiles v. City of Boynton Beach, supra, 802 So.2d at p. 399; Kraus v. Cleveland, supra, 127 N.E.2d at p. 613.)
The statutes and regulations requiring fluoridation of public water supplies as a means of combating dental caries is a valid exercise of the state's police power with respect to public health. In this regard, chemicals, which in their concentrated or basic state may be poisonous, are often introduced into water for the purpose of purification or to protect and preserve health. (Beck v. City Council of Beverly Hills, supra, 30 Cal.App.3d at p. 115, 106 Cal.Rptr. 163.) When used in an extensively regulated fluoridation program which complies with the SDWA, Department ensures the type and amount of any chemicals introduced into the public water supply are not impure or dangerous to the public. (Ibid.) We presume Department will act properly and perform its duty to ensure “the condition of the water, as ultimately distributed, is one of purity and potability.” (Ibid.) Thus, introducing chemicals such as HFSA into the public drinking water does not constitute an infringement of the constitutional right of privacy to be free from forced medication.FN9
FN9. Even if, as argued by Coshow, HFSA is a drug, we nevertheless conclude fluoridating public drinking water with HFSA is not forced medication.
3. Fluoridation with HFSA satisfies the rational basis test under due process principles
“Generally, the constitutional guaranty of substantive due process protects against arbitrary legislative action; it requires legislation not to be ‘unreasonable, arbitrary or capricious' but to have ‘a real and substantial relation to the object sought to be attained.’ [Citation.] Thus, legislation does not violate substantive due process so long as it reasonably relates ‘to a proper legislative goal.’ ” (Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1125, 278 Cal.Rptr. 346, 805 P.2d 300; see also Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 [in the absence of a fundamental right, rational basis standard applies and legislation is presumed valid if state action is rationally related to legitimate state purpose].)
Where, as here, the challenged action primarily concerns health and safety, no fundamental right to privacy is at stake. (Wilson v. California Health Facilities Com. (1980) 110 Cal.App.3d 317, 322, 167 Cal.Rptr. 801.) Consequently, when the state asserts important interests in safeguarding health, review is under the rational basis standard. (Ibid., citing Roe v. Wade, supra, 410 U.S. at pp. 163-165, 93 S.Ct. 705 [state may, without encroaching on any right of privacy, further its important interests in the areas of health and safety].) In the area of health and health care legislation, there is a presumption both of constitutional validity and that no violation of privacy has occurred. (People v. Privitera (1979) 23 Cal.3d 697, 707-709, 153 Cal.Rptr. 431, 591 P.2d 919; Wilson v. California Health Facilities Com., supra, 110 Cal.App.3d at p. 324, 167 Cal.Rptr. 801.)
The actions of City and Department in fluoridating the public drinking water with HFSA are clearly mandated by the Legislature and permitted under the applicable regulations. Water fluoridation is integrally related to a strong state interest-public health-and the manner of accomplishing this objective is a cost-effective way of providing dental protection to residents. As we previously discussed, the type and amount of any chemical City intends to use to fluoridate its water must be approved by Department. (§ 116550, subd. (a).) Use of a particular chemical is prohibited unless it meets exacting standards and specifications. (Cal.Code Regs., tit. 22, § 64700.) Department is required to investigate City's fluoridation plan to ensure the provision of pure, wholesome water that does not endanger the health of consumers. In this regard, City's use of HFSA, which meets required standards and specifications, is rationally related to the statutory objective of protecting dental health through the fluoridation of drinking water. Coshow's disagreement with City's choice of an approved fluoridating agent does not render that choice constitutionally defective.
IV
The Court Properly Excluded Evidence that HFSA is a Drug Not Approved by the FDA to Treat or Prevent Dental Caries
In his fourth amended complaint, Coshow alleged HFSA has never been evaluated and approved by the FDA for safety and effectiveness in reducing tooth decay. The court granted City's and Department's in limine motions to exclude evidence concerning lack of FDA approval of HFSA on the ground it was irrelevant. Coshow contends the court should have considered this evidence in determining whether use of HFSA, viewed under the strict scrutiny test, violated his fundamental constitutional rights.
As we previously concluded, no fundamental constitutional right was implicated by City's use of HFSA, as approved by Department, and thus no strict scrutiny analysis was required. In any event, whether HFSA received FDA approval for purposes of treating dental caries was not relevant to Coshow's claim City's fluoridation plan is illegal and harmful to the public health, and unconstitutional as an infringement of privacy and bodily integrity.
The FDA, in its oversight of food, drugs and cosmetics, regulates fluoride as an anticaries drug in a variety of over-the-counter products such as toothpastes, gels and rinses. (21 C.F.R., §§ 355.1, 355.3 (2005).) In this capacity, the FDA establishes the types of fluoride compounds and their concentrations that may be used in products (21 C.F.R., § 355.10) as well as packaging and labeling requirements (21 C.F.R., §§ 355.20, 355.50, 355.55, 355.60). The FDA's approval of fluoride compounds is limited to fluoridated products in forms “suitable for topical administration to the teeth....” (21 C.F.R., § 355.1.) The FDA also regulates fluoride in bottled water,FN10 which may optionally contain fluoride added within certain established limitations. (21 C.F.R., § 165.110, subds. (a)(1) & (b)(4)(ii).) The FDA's authority over food, drugs and cosmetics, including its regulation of fluoride in various products, does not extend to public supplies of drinking water.
FN10. “Bottled water is water that is intended for human consumption and that is sealed in bottles or other containers with no added ingredients except that it may optionally contain safe and suitable antimicrobial agents.” (21 C.F.R. § 165.110, subd. (a)(1) (2005).)
The legislative goal of the SDWA to provide California's citizens with pure and safe drinking water requires Department to adopt standards for contaminants in drinking water no less stringent than those adopted by the EPA. To ensure these standards, the Office of Environmental Health Hazard Assessment must prepare and publish an assessment of the risks to public health posed by each contaminant, including arsenic, for which Department proposes a primary drinking water standard. (§§ 116361, 116365, subd. (c)(1).) Nothing in the comprehensive statutory and regulatory scheme of the SDWA requires a risk assessment of contaminants by the FDA or FDA approval of any chemical added to the public drinking water. Thus, the court properly excluded this evidence as irrelevant.
V
City's Use of HFSA, as Approved by Department, Was Not an Illegal Expenditure of Public Funds
In his fourth amended complaint, Coshow unsuccessfully sought injunctive relief against City on the ground its use of HFSA to fluoridate the drinking water is an illegal expenditure of public funds because it violates Penal Code section 374.8. That statute creates criminal penalties for any person who knowingly causes any hazardous substance to be deposited into the waters of the state. (Pen.Code, § 374.8, subd. (b).)
Under Code of Civil Procedure section 526a, a taxpayer may challenge wasteful or illegal government action that otherwise would go unchallenged because of standing requirements. (Vasquez v. State of California, supra, 105 Cal.App.4th at p. 854, 129 Cal.Rptr.2d 701.) To state a claim, the taxpayer must allege specific facts and reasons for the belief the expenditure of public funds sought to be enjoined is illegal. “ ‘General allegations, innuendo, and legal conclusions are not sufficient....’ ” (Ibid.)
A cause of action under Code of Civil Procedure section 526a will not lie where the challenged governmental conduct is legal. (Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1027, 46 Cal.Rptr.2d 177.) Conduct in accordance with regulatory standards “is a perfectly legal activity.” (Machado v. State Water Resources Bd. (2001) 90 Cal.App.4th 720, 729, 109 Cal.Rptr.2d 116.) Further, a taxpayer is not entitled to injunctive relief under Code of Civil Procedure section 526a where the real issue is a disagreement with the manner in which government has chosen to address a problem because a successful claim requires more than “an alleged mistake by public officials in matters involving the exercise of judgment or wide discretion.” (Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 1138, 232 Cal.Rptr. 814, 729 P.2d 80.)
Here, City's exercise of its police power to fluoridate the water using HFSA cannot constitute illegal conduct. City is required by law to fluoridate its water system (§ 116409) and can do so only after Department investigates the fluoridation plan and approves an amendment to City's permit (§§ 116525-116550). City's fluoridation plan must meet MCL's and other water quality standards established by Department under the SDWA. (§ 116555.) If Department determines these standards have been met, City's fluoridation plan will have complied with state law governing the use of a particular chemical in the fluoridation of the public water system. Because Department approved City's use of HFSA to fluoridate its water supply, no illegal conduct occurred and thus, there was no illegal expenditure of public funds under Penal Code section 374.8.FN11
FN11. Having independently reviewed the trial court's ruling granting City's and Department's motions for judgment on the pleadings, we need not address Coshow's contention the court's factual findings are unsupported by the evidence and were improperly applied to grant the motion. (Schabarum v. California Legislature, supra, 60 Cal.App.4th at pp. 1216-1217, 70 Cal.Rptr.2d 745 [reviewing court conducts appropriate analysis regarding judgment on the pleadings and need not defer to trial court; court's dismissal may be upheld even if motion granted for wrong reason].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P.J., and IRION, J.

PREMO, J.
In November 2002, the voters of the City of Watsonville (City) passed a ballot initiative known as Measure S. Measure S prohibits introduction of any substance into City's water supply unless the substance conforms to listed requirements. We hold that to the extent Measure S applies to fluoridation it is preempted by state law.
I. FACTUAL AND PROCEDURAL BACKGROUNDFN1
FN1. We take our factual summary from the agreed set of facts upon which the matter was tried.
In the fall of 2002, City was poised to begin a water fluoridation project when City's voters passed Measure S and halted City's fluoridation efforts. Measure S prohibits introducing any substance into City's drinking water (other than substances used to make the water safe to drink) unless, among other things, the United States Food and Drug Administration (FDA) has approved the substance for safety and effectiveness.FN2 Since the FDA does not regulate additives to public water supplies and has never specifically approved the use of fluoride as an additive to public water supplies, Measure S effectively prohibits fluoridation. There is no question that the initiative was designed for that purpose.
FN2. Measure S was enacted as Ordinance No. 1151-02 and added to the Watsonville Municipal Code as section 6-3.443, effective December 6, 2002. The measure provides in full as follows: “In order to ensure that the public water of Watsonville is safe to drink, it shall be unlawful and a public nuisance for any person, agent, or any public or private water system, to add any product, substance, or chemical to the public water supply for the purpose of treating or affecting the physical or mental functions of the body of any person, rather than to make water safe or potable, unless the substance meets the following criteria: [¶] 1) The substance must have been specifically approved by the U.S. Food and Drug Administration for safety and effectiveness with a margin of safety that is protective for all adverse health and cosmetic effects at all ranges of unrestricted consumption. [¶] 2) The substance, at Maximum Use Levels, must contain no contaminants at concentrations that exceed U.S. Maximum Contaminant Level Goals or California Public Health Goals, whichever is more protective. [¶] If any provision of this act or the application thereof to any person or circumstance is held invalid, that invalidity may not affect other provisions or applications of this act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.”
City had begun its fluoridation project as required by Health and Safety Code sections 116410 and 116415.FN3 Section 116410 requires fluoridation of public water systems having at least 10,000 service connections and authorizes the California Department of Health Services (DHS) to adopt regulations to implement that requirement. (§ 116410, subd. (a); Cal.Code Regs., tit. 22, § 64433.) Section 116415 provides that a public water system is not required to fluoridate if sufficient funding is not available from an outside source. (§ 116415, subd. (a)(1)(A).) Outside sources may include federal block grants or donations from private foundations. (§ 116415, subd. (e).) Outside sources do not include a system's ratepayers or local taxpayers. (§ 116415, subd. (a)(1)(A).) FN4
FN3. All further statutory references are to the Health and Safety Code.
FN4. The full text of sections 116409 through 116415 is set forth in the appendix.
City's water system meets the size requirements of section 116410 and funding had been offered by an outside source-the California Dental Association Foundation, but since the newly passed voter initiative prohibited fluoridation, City ceased work on the project and terminated the funding agreement. DHS issued an order directing City to fluoridate as required by section 116410. Because City could not comply with the DHS order without violating Measure S, City filed the instant action.
City's complaint sought declaratory and injunctive relief. City requested a declaration that Measure S “is valid and enforceable and does not conflict with State law, and is not preempted” and that City could legally prohibit the fluoridation of its public water supply. The requested injunction was to “[p]ermanently enjoin [DHS], from enforcing its Compliance Order.” The California Dental Association Foundation and the California Dental Association, both of which have worked to promote fluoridation throughout the state, successfully sought leave to intervene.
The trial court concluded that Measure S was preempted by state law and that City was not exempt from its requirements. City has timely appealed.
II. DISCUSSION
A. Issue and Standard of Review
The only issue before us is whether Measure S is preempted by state law.FN5 This is a pure question of law subject to de novo review. (Gonzales v. City of San Jose (2004) 125 Cal.App.4th 1127, 1133, 23 Cal.Rptr.3d 178.)
FN5. We granted permission for amicus, Nick Bulaich, a Watsonville resident, to file a brief in support of City. Amicus contends that Measure S does not prohibit fluoridation while the parties to this appeal agree that the purpose and effect of Measure S is to prohibit the fluoridation of City's water supply. Amicus also makes a number of factual contentions in support of his argument that City is exempt from or otherwise should not be compelled to comply with the state's fluoridation requirements for reasons other than the prohibition contained in Measure S. However, City's only argument on appeal is that Measure S is enforceable because it is not preempted by state law.
The rule is that an appellate court considers only those questions properly raised by the appealing parties. (California Assn. for Safety Education v. Brown (1994) 30 Cal.App.4th 1264, 1274-1275, 36 Cal.Rptr.2d 404 and cases cited therein.) Accordingly, we decline to consider issues raised by amicus that have not been raised by City.
B. Preemption Analysis
City is a charter city. As such, City may “make and enforce all ordinances and regulations in respect to municipal affairs” subject only to restrictions and limitations provided in its charter. (Cal. Const., art. XI, § 5, subd. (a).) City ordinances and regulations pertaining to municipal affairs supersede all inconsistent laws. (Ibid.) However, a state law regulating a matter of statewide concern preempts a conflicting local ordinance or regulation if the state law is reasonably related to the resolution of the statewide concern and is narrowly tailored to limit incursion into legitimate municipal interests. (Johnson v. Bradley (1992) 4 Cal.4th 389, 404, 14 Cal.Rptr.2d 470, 841 P.2d 990.) This is so even where the local measure involves a traditionally municipal affair. Where the subject of the local law implicates a municipal affair and poses a genuine conflict with state law, “the question of statewide concern is the bedrock inquiry through which the conflict between state and local interests is adjusted.” (California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 17, 283 Cal.Rptr. 569, 812 P.2d 916 (Cal.Fed.).) If the subject of the state law does not qualify as a statewide concern, then the conflicting charter city measure is beyond the reach of the state law. (Ibid.) “If, however, the court is persuaded that the subject of the state statute is one of statewide concern and that the statute is reasonably related to its resolution, then the conflicting charter city measure ceases to be a ‘municipal affair’ pro tanto and the Legislature is not prohibited by article XI, section 5 [subdivision] (a), from addressing the statewide dimension by its own tailored enactments.” (Ibid.)
C. Measure S Actually Conflicts with State Law
We begin the analysis by determining whether there is an actual conflict between Measure S and the state statute. If there is no true conflict, “a choice between the conclusions ‘municipal affair’ and ‘statewide concern’ is not required.” (Cal. Fed., supra, 54 Cal.3d at p. 16, 283 Cal.Rptr. 569, 812 P.2d 916.)
There is a conflict between a state law and a local ordinance if the ordinance duplicates or contradicts the state law, or if the ordinance enters an area fully occupied by general law, either expressly or by implication. (American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1251, 23 Cal.Rptr.3d 453, 104 P.3d 813.) There is an actual conflict in this case because state law fully occupies the area of fluoridation of public water systems having more than 10,000 hookups. The Legislature's express intent to fully occupy the area appears in section 116409: “It is the intent of the Legislature in enacting this article to preempt local government regulations, ordinances, and initiatives that prohibit or restrict the fluoridation of drinking water by public water systems with 10,000 or more service connections ....” (§ 116409, subd. (b).)
The Legislature added section 116409 to the Health and Safety Code in 2004 as part of Senate Bill 96. (Stats.2004, ch. 727 (S.B. 96), § 2.) Senate Bill 96 was introduced in response to local initiatives like Measure S that were designed to curtail fluoridation. (Sen. Floor Analysis, Sen. Bill No. 96 (2003-2004 Reg. Sess.) August 30, 2004, p. 4 (Sen.Analysis).) City argues that since section 116409 had not been enacted at the time judgment was entered in this case, it is inapplicable to our review. We disagree. It is well established that review of a judgment for injunctive relief is governed by the law in effect at the time the appellate court renders its decision. (Marine Forests Society v. California Coastal Com. (2005) 36 Cal.4th 1, 14, 30 Cal.Rptr.3d 30, 113 P.3d 1062.) Even though, as City points out, this case involves declaratory relief as well as an injunction, given the nature of the declaration requested, it is appropriate to apply the current law.
The reason a reviewing court applies current rather than former law when reviewing an injunctive decree is because injunctive relief operates in the future. (See 6 Witkin, Cal. Procedure (4th ed. 1997) Provisional Remedies, § 399, p. 324 & cases cited; see also 9 Witkin, Cal. Procedure, supra, Appeal, § 332, p. 373.) It would be an idle gesture to affirm an injunctive decree because it was correct when rendered, “with full knowledge that it is incorrect under existing law, and with full knowledge that, under existing law, the decree as rendered settles nothing so far as the future rights of these parties are concerned.” (Tulare Dist. v. Lindsay-Strathmore Dist. (1935) 3 Cal.2d 489, 527, 45 P.2d 972.) It does not matter whether the Legislature intended the new law to be retroactive. The reviewing court is interested in the law's prospective effect since that is when the decree under review will operate.
In our view, the same reasoning applies to a judicial declaration that has purely prospective effect. A declaratory judgment is to “ ‘serve some practical end in quieting or stabilizing an uncertain or disputed jural relation.’ ” (Columbia Pictures Corp. v. DeToth (1945) 26 Cal.2d 753, 760, 161 P.2d 217.) When resolution of the uncertainty at issue does not affect vested rights and operates only with respect to the future rights and duties of the parties, we apply the law in effect at the time of review because that is the law under which the judicial declaration will have effect. Furthermore, since the Legislature enacted section 116409 having in mind the very dispute we are reviewing, we should apply the new law if it is otherwise appropriate to do so. (Cf. Texas Co. v. Brown (1922) 258 U.S. 466, 473-474, 42 S.Ct. 375, 66 L.Ed. 721.) It would certainly be an idle act to measure City's ordinance against former state law when the question is whether City may legally enforce its ordinance now and in the future. Resolution of that question will not affect any vested rights. Thus, the appropriate way to determine whether Measure S conflicts with the state law is to examine the law as it currently exists.
Notwithstanding the Legislature's express intent to preempt local fluoridation ordinances, City argues that there is no actual conflict. City contends that there are insufficient funds available to pay for a fluoridation system, which means that section 116410 does not require City to fluoridate, which, in turn, means that City may lawfully enforce Measure S and prohibit fluoridation. Therefore, according to City, there is no actual conflict and Measure S is not preempted. In the same vein, City argues that it is not yet required to fluoridate because it is not at the top of the fluoridation priority list set forth in the regulations.FN6 City's argument is beside the point. There is an actual conflict between Measure S and the state law because Measure S purports to regulate an area that is fully occupied by express provisions of the state law. That is, since Measure S purports to regulate fluoridation, it conflicts with the state law regardless of whether or not City is presently exempt from the fluoridation requirements of section 116410.
FN6. California Code of Regulations, title 22, section 64434 states: “Public water systems with 10,000 service connections or more that are not fluoridating as of July 1, 1996, shall install fluoridation systems and initiate fluoridation according to the order established in Table 64434-A, as the water systems receive funds from sources identified by the Department, pursuant to Health and Safety Code section 116415.” The 2004 amendments to section 116410 (Stats.2004, ch. 727 (S.B. 96), § 3) clarify that the purpose of the referenced table “is not to mandate the order in which public water systems receiving funding from private sources must fluoridate their water. Available funds may be offered to any system on the schedule.” (§ 116410, subd. (c).)
City also contends that the Legislature has not fully occupied the field of fluoridation because the state law does not encompass the numerous public water systems that have fewer than 10,000 hookups. This argument, too, misses the mark. The Legislature has chosen to define the field as fluoridation of public water systems having 10,000 service connections or more. Pursuant to settled preemption analysis, any local attempt to regulate within the field that the Legislature has expressly occupied in full actually conflicts with the state law. Since Measure S would affect the fluoridation of a public water system having more than 10,000 service connections, Measure S conflicts with the state law.
D. Fluoridation of Public Water Systems Is a Statewide Concern
When there is a true conflict between a charter city measure and a state statute, the next question is whether the subject of the conflicting laws is one of statewide concern. (Johnson v. Bradley, supra, 4 Cal.4th at p. 404, 14 Cal.Rptr.2d 470, 841 P.2d 990.) In this case, the Legislature has declared: “Promotion of the public health of Californians of all ages by protection and maintenance of dental health through the fluoridation of drinking water is a paramount issue of statewide concern.” (§ 116409, subd. (a).) Section 116410, subdivision (a) reiterates that concern where it states that qualifying public water systems must be fluoridated “in order to promote the public health of Californians of all ages through the protection and maintenance of dental health, a paramount issue of statewide concern.” Although we give these pronouncements great weight, they are not controlling. (Domar Electric, Inc. v. City of Los Angeles (1995) 41 Cal.App.4th 810, 821-822, 48 Cal.Rptr.2d 822.) “[T]he hinge of the decision is the identification of a convincing basis for legislative action originating in extramunicipal concerns.” (Cal. Fed., supra, 54 Cal.3d at p. 18, 283 Cal.Rptr. 569, 812 P.2d 916.)
Fluoride is introduced into the water supply for the purpose of preventing tooth decay. (Beck v. City Council of Beverly Hills (1973) 30 Cal.App.3d 112, 113, 106 Cal.Rptr. 163.) “Courts through the United States have uniformly held that fluoridation of water is a reasonable and proper exercise of the police power in the interest of public health.” (Id. at p. 115, 106 Cal.Rptr. 163.) Although the Beck court stated over 30 years ago that the matter “is no longer an open question” (ibid.), fluoridation battles such as this one continue to erupt. The two primary issues involved in these disputes are the concerns of public health and water quality. (Sen. Analysis, supra, at pp. 4-5.)
Public health and water quality are matters of statewide concern. (Northern Cal. Psychiatric Society v. City of Berkeley (1986) 178 Cal.App.3d 90, 108, 223 Cal.Rptr. 609; Lewis Food Co. v. State of California (1952) 110 Cal.App.2d 759, 762, 243 P.2d 802; California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 30-31, 61 Cal.Rptr. 618.) Of course, City has a vital interest in the health and safety of its inhabitants and in the quality of the water they drink and, therefore, both concerns may be deemed municipal affairs. We are convinced, however, that the state's extramunicipal concerns tip the scales in favor of statewide regulation of water fluoridation.
One factor that makes fluoridation a matter of statewide concern is the need for uniform standards for water quality. The introduction of any substance, including fluoride, into the public drinking water necessarily implicates the quality of the water. Indeed, the California Safe Drinking Water Act (§ 116270 et seq.) defines “contaminant” as “any physical, chemical, biological, or radiological substance or matter in water.” (§ 116275, subd. (a).) DHS is the agency responsible for the quality of the public drinking water supply. (§ 116270, subd. (g).) Pursuant to its legislative mandate, DHS has developed comprehensive drinking water standards, which include standards for fluoride. (Cal.Code Regs., tit. 22, §§ 64431-64432.)
As the appellate court stated in Paredes v. County of Fresno (1988) 203 Cal.App.3d 1, 10, 249 Cal.Rptr. 593 (Paredes ): “[T]he Legislature has assigned to the DHS the duty to set standards regarding unhealthy levels of contaminants in drinking water. Local decisions on the same subject, varying from county to county, cannot be justified.” Paredes recognized that in People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 486, 204 Cal.Rptr. 897, 683 P.2d 1150, the Supreme Court permitted local regulation of aerial spraying of herbicides because differences such as the location of schools, dwellings, hospitals, and recreational areas required local flexibility. Paredes distinguished that holding, noting: “In contrast, the degree of permissible levels of water contaminants depends upon scientific expertise and judgment which, difficult as that may be to resolve, applies generally to all users of water statewide.... [T]he Legislature has dictated that statewide standards be set, and thus made it clear local health officers are to be concerned with enforcing, not creating, such standards.” (Paredes, supra, 203 Cal.App.3d at pp. 10-11, 249 Cal.Rptr. 593.)
The reasoning of Paredes is directly applicable in this case. Setting permissible levels for fluoride in the drinking water is no different than setting standards for any other substance in the water. It requires scientific expertise that applies generally to all users and does not require local flexibility. The only purely local issue of which we are aware is the possible existence of naturally occurring fluoride. Section 116410, subdivision (a), however, expressly excludes from its scope any water system having natural fluoride in excess of specified levels. On the other hand, citizens throughout the state are entitled to the assurance that the water they receive conforms to all current public health standards. A patchwork of inconsistent local measures cannot provide that assurance.
Another issue that makes fluoridation of the drinking water supply a statewide concern is the cost of healthcare. The Legislature has declared that one of the purposes of section 116410 is to “decrease the burden the Medi-Cal and the Denti-Cal programs place upon the state's limited funds.” (§ 116409, subd. (c).) This is, unquestionably, a statewide issue. Indeed, the stated purpose of the sponsor of the legislation was to “prevent a major economic health problem in California-tooth decay.... [¶] Tooth decay affects 90 percent of our population and it's estimated that it will cost our state Denti-Cal program approximately $800 million this year. Of this amount, nearly half will be spent treating dental disease that can be prevented.” (Sen. Health Com., Statement by Assem. Speier, sponsor of Assem. Bill. No. 733 (1995-1996 Reg. Sess.).)
In view of these circumstances and concerns and the Legislature's express findings, we conclude that fluoridation of the state's public water systems for the purpose of improving the dental health of the state's citizens is a matter of statewide concern.
E. State Law Is Reasonably Related and Narrowly Tailored to the Statewide Concern
We now consider whether the state law is reasonably related to the identified statewide concern and narrowly tailored to avoid infringing legitimate municipal affairs. City implicitly concedes the reasonableness of the relationship because its argument is directed solely to the final question, whether the state's requirements are narrowly tailored.
City argues that the state law is not narrowly tailored to the state's interest in improving the dental health of children since fluoridated water will affect all users. City also argues that there are “other, less intrusive means” of improving dental health, such as programs for topical fluoride and dental disease prevention programs in schools. These arguments are unavailing. First, the Legislature has clarified that the state's interest is in the dental health of all Californians, not just children. (§ 116410, subd. (a).) Second, in articulating the test for preemption the Supreme Court was concerned with ensuring that a state law does not infringe legitimate municipal interests other than that which the state law purports to regulate as a statewide interest. (Johnson v. Bradley, supra, 4 Cal.4th at p. 404, 14 Cal.Rptr.2d 470, 841 P.2d 990.) City's arguments, therefore, do not bear upon the question before us. Although the state law unquestionably interferes with City's interest in regulating fluoride in its water supply, as we have explained, regulating fluoridation is a statewide concern that overrides City's municipal interest in the subject. It is immaterial that there may be redundancies or overlap among state laws so long as the state law in question does not infringe City's other municipal interests.
The only other municipal interest City cites is the possibility that third parties could “usurp authority over a city's local affairs.” City is referring here to the provision in section 116415, subdivision (e)(2) that requires DHS to seek funding for implementation of fluoridation programs from various sources, including private foundations such as the California Dental Association Foundation. City complains that private funding sources may impose terms and conditions within their funding agreements that would dictate the manner in which City could operate its fluoridation program. The problem, as City sees it, is that third parties might have their own financial interests in mind so that a funding offer could require the use of a specific industry source for fluoride, which, according to City, could result in “over-inflated costs,” or the “use of inferior products which could jeopardize the quality of the local water supply.”
City's concerns are speculative and unrealistic. Standards for water quality are set by the state and enforced locally. (§ 116270 et seq.; Paredes, supra, 203 Cal.App.3d at p. 11, 249 Cal.Rptr. 593.) Fluoridation costs are determined by the water system subject to review by DHS. (§§ 116410, subds.(a), (d), 116415, subds. (a)(1)(C), (g).) The state law provision that allows for third-party funding merely facilitates funding of a mandated fluoridation project while leaving control of cost and quality issues to the appropriate local and state agencies.
In short, the state's water fluoridation law (§ 116409 et seq.) affects only the statewide interest of promoting public health by protecting and maintaining dental health while insuring the quality of the state's drinking water. It has no significant effect on other legitimate municipal affairs.
III. CONCLUSION
To the extent Measure S affects fluoridation of City's public water system, it is preempted by sections 116409 et seq. and is, therefore, void and without effect.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: RUSHING, P.J., and ELIA, J.
APPENDIX
Health and Safety Code section 116409:
The Legislature finds and declares all of the following:
(a) Promotion of the public health of Californians of all ages by protection and maintenance of dental health through the fluoridation of drinking water is a paramount issue of statewide concern.
(b) It is the intent of the Legislature in enacting this article to preempt local government regulations, ordinances, and initiatives that prohibit or restrict the fluoridation of drinking water by public water systems with 10,000 or more service connections, without regard to whether the public water system might otherwise be exempt from Section 116410 or the requirements of this section, pursuant to Section 116415.
(c) It is further the intent of the Legislature in establishing this article to decrease the burden the Medi-Cal and the Denti-Cal programs place upon the state's limited funds.
Health and Safety Code section 116410:
(a) Each public water system with at least 10,000 service connections and with a natural level of fluorides that is less than the minimum established in the regulations adopted pursuant to this section shall be fluoridated in order to promote the public health of Californians of all ages through the protection and maintenance of dental health, a paramount issue of statewide concern. The department shall adopt regulations pursuant to Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code, requiring the fluoridation of public water systems. By July 1, 1996, and at 10-year intervals thereafter, each public water system with at least 10,000 service connections shall provide to the department an estimate of the total capital costs to install fluoridation treatment. The regulations adopted by the department shall take effect on January 1, 1997. Capital costs estimates are no longer required after installation of the fluoridation treatment equipment.
(b) The regulations shall include, but not be limited to, the following:
(1) Minimum and maximum permissible concentrations of fluoride to be maintained by fluoridation of public water systems.
(2) The requirements and procedures for maintaining proper concentrations of fluoride, including equipment, testing, recordkeeping, and reporting.
(3) Requirements for the addition of fluorides to public water systems in which the natural level of fluorides is less than the minimum level established in the regulations.
(4) A schedule for the fluoridation of public water systems with at least 10,000 service connections, based on the lowest capital cost per connection for each system.
(c) The purpose of the schedule established pursuant to paragraph (4) of subdivision (b) is not to mandate the order in which public water systems receiving funding from private sources must fluoridate their water. Available funds may be offered to any system on the schedule.
(d) The estimates provided to the department pursuant to subdivision (a) of this section and subdivision (g) of Section 116415 of the total capital and associated costs and noncapital operation and maintenance costs related to fluoridation treatments and the similar estimates provided to those sources offering to provide the funds set forth in paragraph (1) of subdivision (a) of Section 116415 shall be reasonable, as determined by the department. A registered civil engineer recognized or employed by the department who is familiar with the design, construction, operation, and maintenance of fluoridations systems shall determine for the department whether the costs are reasonable.
(e) As used in this section and Section 116415, “costs” means only those costs that require an actual expenditure of funds or resources, and do not include costs that are intangible or speculative, including, but not limited to, opportunity or indemnification costs.
(f) Any public water system with multiple water sources, when funding is not received to fluoridate all sources, is exempt from maintaining otherwise required fluoridations levels in areas receiving any nonfluoridated water. The exemption shall be in effect only until the public water system receives funding to fluoridate the entire water system and the treatment facilities are installed and operational.
Health and Safety Code section 116415:
(a)(1) A public water system is not required to fluoridate pursuant to Section 116410, or the regulations adopted thereunder by the department, in any of the following situations:
(A) If the public water system is listed on the schedule to implement a fluoridation program pursuant to paragraph (4) of subdivision (b) of Section 116410 and funds are not offered pursuant to a binding contractual offer to the public water system sufficient to pay the capital and associated costs from any outside source. As used in this section, “outside source” means a source other than the system's ratepayers, shareholders, local taxpayers, bondholders, or any fees or charges levied by the water system.
(B) If the public water system has been offered pursuant to a binding contractual offer the capital and associated funds necessary for fluoridation as set forth in subparagraph (A) and has completed the installation of a fluoridation system, however, in any given fiscal year (July 1-June 30, inclusive) funding is not available to the public water system sufficient to pay the noncapital operation and maintenance costs described in subdivision (g) from any outside source other than the system's ratepayers, shareholders, local taxpayers, bondholders, or any fees or charges levied by the water system. A binding contractual offer to provide funds for 12 months, without regard to fiscal year, of noncapital operation and maintenance costs shall render a water system unqualified for an exemption under this subparagraph for that year.
(C) If the funding provided by an outside source for capital and associated costs is depleted prior to completion of the installation of a fluoridation system and funds sufficient to complete the installation have not been offered pursuant to a binding contractual offer to the public water system by an outside source. In the event of a disagreement between the public water system and an outside funding source about the reasonableness of additional capital and associated costs, in order to qualify for an exemption under this subparagraph the costs overruns must be found to be reasonable by a registered civil engineer recognized or employed by the department who is familiar with the design, construction, operation, and maintenance of fluoridation systems.
(2) Each year the department shall prepare and distribute a list of those water systems that do not qualify for exemption under this section from the fluoridation requirements of Section 116410. This list shall include water systems that have been offered, have received, or are expected to receive, sufficient funding for capital and associated costs so as to not qualify for exemption under subparagraph (A) of paragraph (1), and have either (A) been offered or have received, or anticipate receiving, sufficient noncapital maintenance and operation funding pursuant to subdivision (g), or (B) have not yet completed the installation of a fluoridation system, so that they do not qualify for exemption under subparagraph (B) of paragraph (1).
(3) Any water system that has been offered pursuant to a binding contractual offer the funds necessary for fluoridation as set forth in subparagraph (A) of paragraph (1), and is not included in the list pursuant to paragraph (2), may elect to exercise the option not to fluoridate during the following fiscal year pursuant to subparagraph (B) of paragraph (1) by so notifying the department by certified mail on or before June 1.
(4) The permit issued by the department for a public water system that is scheduled to implement fluoridation pursuant to paragraph (4) of subdivision (b) of Section 116410 shall specify whether it is required to fluoridate pursuant to Section 116410, or whether it has been granted an exemption pursuant to either subparagraph (A) or subparagraph (B) of paragraph (1).
(b) The department shall enforce Section 116410 and this section, and all regulations adopted pursuant to these sections, unless delegated pursuant to a local primary agreement.
(c) If the owner or operator of any public water system subject to Section 116410 fails, or refuses, to comply with any regulations adopted pursuant to Section 116410, or any order of the department implementing these regulations, the Attorney General shall, upon the request of the department, institute mandamus proceedings, or other appropriate proceedings, in order to compel compliance with the order, rule, or regulation. This remedy shall be in addition to all other authorized remedies or sanctions.
(d) Neither this section nor Section 116410 shall supersede subdivision (b) of Section 116410.
(e) The department shall seek all sources of funding for enforcement of the standards and capital cost requirements established pursuant to this section and Section 116410, including, but not limited to, all of the following:
(1) Federal block grants.
(2) Donations from private foundations.
Expenditures from governmental sources shall be subject to specific appropriation by the Legislature for these purposes.
(f) A public water system with less than 10,000 service connections may elect to comply with the standards, compliance requirements, and regulations for fluoridation established pursuant to this section and Section 116410.
(g) Costs, other than capital costs, incurred in complying with this section and Section 116410, including regulations adopted pursuant to those sections, may be paid from federal grants, or donations from private foundations, for these purposes. Each public water system that will incur costs, other than capitalization costs, as a result of compliance with this section and Section 116410, shall provide an estimate to the department of the anticipated total annual operations and maintenance costs related to fluoridation treatment by January 1 of each year.
(h) A public water system subject to the jurisdiction of the Public Utilities Commission shall be entitled to recover from its customers all of its capital and associated costs, and all of its operation and maintenance expenses associated with compliance with this section and Section 116410. The Public Utilities Commission shall approve rate increases for an owner or operator of a public water system that is subject to its jurisdiction within 45 days of the filing of an application or an advice letter, in accordance with the commission's requirements, showing in reasonable detail the amount of additional revenue required to recover the foregoing capital and associated costs, and operation and maintenance expenses.

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DeAryan v. Butler

California, Abuse of Municipal Authority, State police power

Plaintiff

C. Leon DeAryan

Defendant

John D. Butler as Mayor of the City of San Diego

State

California

Other Parties

-

Case Tags

- Abuse of Municipal Authority

- State police power

Citation

119 Cal. App. 2d 674; 260 P.2d 98 (Cal. Dist. Ct. App. 1953)

Year

1953-00-00T00:00:00

Court Name

Court of Appeal of California, Fourth Appellate District

Abstract

-

Description of Legal Challenge

-

Opinion #

4527

Opinion Judges

Griffin J, Barnard PJ, Mussell J

Opinion Text

GRIFFIN, Justice.
Plaintiff and appellant individually, as taxpayer and elector, and in a claimed representative capacity, filed an action to enjoin the Mayor, City Council, and other City officials from adding a fluoride compound, in an amount sufficient to maintain one part of fluoride per one million parts of water to the water furnished to the consumers of water in the City of San Diego.
The action arose out of the adoption of a resolution of the City Council on October 30, 1951, as pleaded in the petition, reciting in part that:
‘Whereas, the San Diego County Medical Society, the San Diego County Dental Society, the Board of Directors and the Health Division of the Community Walfare Council, the Health Division of the Ninth District Congress of Parents and Teachers, and the Public Health Commission of The City of San Diego have recommended to this Council that it will be directly in the interests of the health of the people of The City of San Diego to furnish to water consumers in said City water which has been treated by adding to its contents fluorides, and that this Council should endorse the principle of artificial fluoridation with respect to the supplying of water to the people of The City of San Diego; and
‘Whereas, this Council is of the opinion that such recommendation should be followed, and that it will be in the interests of the public health and the dental health of the residents of San Diego and the water consumers of said City to treat the water served to consumers within said City by adding to it an approved fluoride compound * * *; Now, Therefore,
‘Be It Resolved * * *
‘That the City Manager be, and he is hereby authorized and directed to apply to the State Board of Health for an amendment of the water permit of said City to allow said City’ so to do.
A temporary restraining order was issued. At the hearing it was stipulated that such a resolution, as worded, was adopted after receiving testimony ‘that the fluoridation of water will primarily act as a caries-preventive on children up to about the age of twelve years, and that said Resolution * * * was adopted by the Council primarily in the interest of the public health of said children up to about the twelfth year of age; * * * that pursuant to said Resolution * * * City Manager * * * did apply for and receive from the State of California Department of Public Health, pursuant to sections 4011-4038, inclusive, of the California Health and Safety Code, a permit to add fluoride compounds to all the water being served in The City of San Diego.’
Thereafter, plaintiff offered certain exhibits and reports in evidence and produced certain witnesses who testified generally concerning the artificial fluoridation of water intended for human consumption, and as to its probable beneficial or detrimental effects in so using it.
The Sanitary Engineer for the City Water Department (appearing in his individual capacity) testified that although he was not qualified to testify as to the actual biochemistry of fluorides in the human body, he did know there were ‘two sides' to the question as to the detrimental or beneficial effect of fluoridation of water for human consumption. This study was based on such reports as those of the National Research Council, Division of Medical Sciences, pertaining to the Ad Hoc Committee on Fluoridation of Water Supplies, which commission was headed by Dr. Kenneth S. Maxcy, of Johns Hopkins University. He pointed out from the conclusions of that report, with which he said he agreed, that ‘The upper level of safety has been reached in the northern part of the United States in domestic water supplies containing approximately 1.0 to 1.5 p. p. m. fluorine, in the southern part of the country approximately 0.7 p. p. m.’; and that in his opinion the city of San Diego, ‘climatically would be in the lowest tolerance group in the United States'; that of its 375,000 inhabitants now being served by the City Water Department, about 25 per cent are of the age of 12 years or under; that the cost of the equipment and to run the contemplated program provided in the ordinance for the first six months would be $35,000, and in the subsequent years this would cost about $35,000 per year; that only about one-half of one per cent of the public water supply output is used for cooking and drinking; that if one starts out with one part per million concentration and boils one-half of it away he will end up with two parts per million, and if he boils another one-half away he will end up with four parts per million; that in such cases, although not necessarily dangerous ‘could possibly’, or would probably, cause parents of children some concern and ‘perhaps involve the City’, and that ‘moderate fluorosis is a probability’.
Another witness testified that he operated a health food store and had studied nutrition for over twenty years; that he had studied pamphlets prepared by universities, doctors and chemists on the subject, and that they state that ‘sodium fluoride, such as used in our drinking water, is a toxic and poisonous chemical’, and that fluoridation of water harms the human system more than it helps it.
Another witness, a graduate of West Coast Chiropractic College, testified he made a study of chemistry there; that he agreed with Taber's Cyclopedic Medical Dictionary defining sodium fluoride, as being a manufactured product, a ‘White crystalline power, saline in taste * * * Action and Uses: Epilepsy, tuberculosis, and malaria * * * Commercially, in etching glassware, for eradication of rats, insects, ants, and other pests, or as a food preservative’; that in his opinion it would not help in building up children's teeth; that when it came in contact with the stomach juices it would turn into hydrochloric acid, a substance used to etch glass; and that in his opinion it would, as to a certain class of people, have a cumulative effect and would injure organs of the human body. He admitted that current surveys made by the U. S. Public Health Service indicate a great difference of opinion as to the cumulative effect on the organs and as to what concentrations are necessary to produce the effects above noted; that a San Diego County Medical Society bulletin indicates that more than 140 cities have adopted fluoridation of water supplies; that it states that the councils are unaware of any evidence that fluoridation of water supplies, up to a concentration of one part per million, would lead to structural damage in the bones; that the only difficulty so far revealed is the possible increase in the mottling of the teeth enamel, but the use of it is safe. He did not agree in toto with them. He stated that he heard some of the arguments, pro and con, at a hearing before the City Council on the advisability of adopting the plan, but did not participate in the arguments.
Several dissertations by so-called experts on the subject, which involved tests claimed to have been made, were admitted in evidence, which reports resulted in the conclusion that sodium fluoride has a cumulative effect on the human body, and is harmful to anyone's teeth, regardless of his age, and that the fluorine content of the water supply should never be more than one-half part per million. These opinions were published in 1945, 1946, and 1949.
Petitioner offered in evidence a copy of a proposed bill to the State Legislature which in substance specifically authorized public and private utilities to treat water intended for public consumption and to introduce into it fluorine, if done under a permit in connection therewith. It also provided for exemption to municipalities, etc. for any damage that might result therefrom.
A resolution of the Southern California Water Works was received in evidence, without objection. It recites generally that it had made a painstaking investigation of the subject and that it was not ‘convinced’ that the medical benefits or detriments, the legal responsibility of the distributors, and the economic aspects of such treatment have been sufficiently explored to warrant the general and unrestricted application of fluorine to domestic supplies.
It was agreed at the trial that the reports here in evidence were a part of the matters submitted and considered by the city council at the time of the hearing before it. Some of these reports contained the opinions and resolutions of the board of directors of the American Water Works Association, adopted at a convention in Illinois in 1949, covering fluoridation of public water supplies. It is to the effect that ‘in communities where strong public demand has been developed, and the procedure has the full approval of the local medical and dental societies, the local and state health authorities, and others responsible for the communal health, water departments or companies may properly participate in a program of fluoridation of public water supplies'; that ‘The water works man is not in a technical position to recommend fluoridation. Such recommendations are the prerogative of the dental, medical and public health groups. The association has stated, however, that the water works industry is willing and ready to follow through when the proper authorities recommend or approve the treatment.’
The recommendations of the board of directors of the San Diego County Dental Society, in evidence, show that it went ‘on record approving fluoridation of the ‘communal water supplies' in the San Diego water system after consultation with a three-man committee from the San Diego County Medical Society was recommended one part per million of floride.’ A similar letter from the counsel of San Diego County Medical Society was received in evidence.
The testimony of other witnesses was to the effect that mass fluoridation of a water system would be dangerous to health; that it might be conceded that use of fluoride can cause a decrease in the existence of dental caries, although there are ‘responsible authorities' on each side of the question.
After presentation of this summarized evidence defendant's motion for a nonsuit was granted. Plaintiff appealed from an order based thereon. It is contended on this appeal that the trial court erred in granting a nonsuit when the evidence presented by petitioner, under the pleadings, presented a prima facie case for relief.
In disposing of the question we must first look to plaintiff's petition in which he alleges the claimed grounds for the issuance of the injunction. They are first, that the resolution pleaded ‘exceeds the authority granted the city council’ by its charter and the ‘Health and Safety Code.’
Sections 100 and 101 of that code have made the State Board of Public Health a part of the Department of Public Health, and it has power to formulate policies affecting public health, and to adopt, promulgate, repeal and amend rules and regulations consistent with law for the protection of the public health. Its membership must be composed of six licensed and practicing physicians of this state and one licensed and practicing dentist. The Director of Public Health must be fully qualified in this field. Sections 101 and 107. Sections 4011 and 4011.5 thereof prohibit any person from furnishing water for domestic purposes without first applying for and receiving a permit so to do from the State Board of Public Health, and provide for the modification of, addition to, or change in the source of supply or method of treatment of water for domestic purposes. Section 4021 then allows the Board to determine whether the water thus distributed is ‘pure, wholesome, and potable and does not endanger the lives or health of human beings', and when it so determines it shall grant such a permit. Such a permit was issued in the instant case. It therefore is apparent that the legislature has delegated to the State Board of Public Health the duty and powers necessary to control and regulate the purity, potability and wholesomeness of public waters in this state. The legislature is possessed of the entire police power of the State, except as its power is limited by the provisions of the Constitution and other laws applicable thereto. Such police power is an indispensable prerogative of sover-eignty and may not be legally limited even though at times its operation may seem harsh, so long as it is not unreasonable and arbitrarily invoked and applied. Justesen's Food Stores, Inc., v. City of Tulare, 12 Cal.2d 324, 329, 84 P.2d 140.
Section 4031 thereof makes it unlawful for any person to furnish or supply to a user water used or intended to be used for human consumption or for domestic purposes which is impure, unwholesome, unpotable, polluted, or dangerous to health. The standards set by this section are the same as those set forth in section 4021. These are only statutory regulations as to the quality of water to be furnished to consumers in this state, and the State Board of Public Health has made a finding that the water to be furnished under the fluoridation program does comply with these statutory standards. It therefore appears that the City Council did not exceed the authority granted it under the Health and Safety Code. It is within the authority of a city to adopt regulations designed to promote the health and welfare of the people. Sections 6 and 11, Article XI, Constitution of California; Boyd v. City of Sierra Madre, 41 Cal.App. 520, 183 P. 230; Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 38 A.L.R. 1479.
Section 1 of the City Charter of San Diego grants authority to the City of San Diego to exercise such municipal powers as are authorized to be granted to municipal corporations by the Constitution and laws of this State. See Section 11, Art. XI, Constitution of California.
We therefore conclude that the addition of fluoride to the water supply, as directed by resolution of the City Council, was a valid exercise of the police power of the City of San Diego, so long as it was not unreasonable or an abuse of discretion so to do. Laurel Hill Cemetery v. San Francisco, 216 U.S. 358, 30 S.Ct. 301, 54 L.Ed. 515; Roussey v. City of Burlingame, 100 Cal.App.2d 321, 223 P.2d 517. The determination by the legislative body that a particular regulation is necessary for the protection or preservation of health is conclusive on the courts except only to the limitation that it must be a reasonable determination, not an abuse of discretion, and must not infringe rights secured by the Constitution. Powell v. Commonwealth of Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 1257, 32 L.Ed. 253; Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643; In re Lowenthal, 92 Cal.App. 200, 267 P. 886.
It is to be noted that there is no allegation in the petition that the City Council of the City of San Diego abused its discretion, or that the determination made by it was unreasonable. Accordingly, the evidence to which petitioner points may not be considered in determining this fact. Fuentes v. Tucker, 31 Cal.2d 1, 187 P.2d 752.
The only possible question remaining is whether or not the fluoridation of the water supply, under the evidence produced, was a plain, palpable invasion of the rights secured by fundamental law.
In this connection it is alleged that the ‘Resolution introduces the thin end of the wedge of Socialized Medicine in violation of the Tenth Amendment to the U. S. Constitution, which reserves to the people the immunity of person’; that the ‘powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’ The argument in this connection is that this State, through its legislature, has declared its policy in reference to matters of religious objection to medical treatment, citing Section 21003 of the Health and Safety Code; First Amendment to the Constitution of the United States; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; and Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; that the State, through its legislature, has only permitted fluoridation of privately sold waters, Section 26470.5 Health and Safety Code, leaving to the consumers a choice which is denied them by the instant resolution; that in refusing to pass the proffered legislation above mentioned, the legislature has, in effect, refused such fluoridation as a public policy; that the consumers contracted for a particular water, and the substitute here made breaches that contract; that petitioner's independent right to life and liberty secured by the Fourteenth Amendment to the United States Constitution has been violated, citing Tomlinson v. Armour & Co., 75 N.J.L. 748, 70 A. 314, 19 L.R.A.,N.S., 923; and that accordingly, even under a general grant of power, a municipality cannot adopt ordinances which are unconstitutional or inconsistent with the public policy of the state, as declared in its legislation, citing 5 McQuillin, Municipal Corporations, p. 100, Sec. 15.21; 7 McQuillin, Municipal Corporations, p. 51, Sec. 24.222; 6 McQuillin, Municipal Corporations, p. 126, Sec. 20.51; Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643.
It does not clearly appear from the evidence produced that the ordinance is a plain, palpable invasion of the rights secured to petitioner by the fundamental law, nor does it appear that it violates any policy or laws of the State of California or that by reason of the facts established the ordinance is in the respects indicated unconstitutional. The matter was one within the sound discretion of the City Council. Failure of the legislature to pass any particular measure is not conclusive evidence of its policy on the subject especially where, as here, the bill as proposed contained a provision granting immunity from liability in case of damage suits arising from the addition of fluoridation to water supplies. By the granting of the authority to the State Board of Health to issue a permit under the conditions stated, the legislature has delegated to that board the duty to determine whether the water to be used is pure, wholesome and not dangerous to life and health and its authority cannot, in this proceeding, be questioned.
The United States Supreme Court, in establishing and clarifying the Constitutional right of religious and other freedoms, has distinguished between the direct compulsions imposed upon individuals, with penalties for violations, and those which are indirect or reasonably incidental to a furnished service or facility. Hamilton v. Regents of University of California, 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628; Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213.
It is true, as pointed out by appellant, that a motion for a nonsuit assumes as true every fact which the evidence, and presumptions fairly deducible therefrom, tend to prove, and on such motion the evidence must be taken most strongly against the defendant, and constradictory evidence must be disregarded. Since the petition does not allege and the facts established do not show that the City Council acted arbitrarily or abused its discretion, the court could acquire no jurisdiction to substitute its discretion for that of the determining body. It here affirmatively appears that a hearing was had before the City Council and practically all of the contentions here made as to the advisability of fluoridation of the City waters, was considered by that body, and it made the determination indicated by the resolution. Since the City Council had jurisdiction to act and make such a determination, and such determination being neither unreasonable nor an abuse of discretion, the trial court properly determined that it was unauthorized to review the advisability of such determination by the City Council, and an order for an injunction predicated on such a ground could not be sustained.
Upon the showing made before the City Council it might well have determined that it was not advisable to fluoridate the City waters. However, this was a matter for the determination by that body and the court's judgment could not be substituted for that of the City Council. The City Council still retains the right to abandon the project if, at any time, it may so determine. Likewise, a remedy by petition to that body for the repeal of the resolution or submission of the matter of its repeal to the electorate is provided. Section 23, Charter of the City of San Diego, Stats.1931, p. 2838, at p. 2858, as amended, Stats. 1941, Chap. 78, p. 3429, at p. 3434.
Order affirmed.
BARNARD, P. J., and MUSSELL, J., concur.
Hearing denied; EDMONDS, J., dissenting.

FRIEDMAN, J.
On July 10, 1962, the City Council of the City of Lincoln adopted a resolution directing fluoridation of the municipal water supply, subject to the approval of the State Board of Public Health. A group of electors circulated a petition proposing an initiative ordinance to prohibit addition of fluorides to the city's public water supply. On September 15, 1963, the city clerk submitted the petition to the council with a certificate showing that it was signed by more than 15 per cent of the municipal voters. When a proposed initiative ordinance bearing that percentage of signatures is presented to the city council, the law requires it either to adopt the ordinance or immediately call a special election for its submission to the voters. (Elec. Code, § 4011.) The Lincoln city council refused to take either step. Several electors then filed this mandate action to force the city council to submit the proposed ordinance to election. After a hearing the lower court issued a peremptory writ and the city appeals.
Essentially, the city's position may be described as follows: An ordinance proposed by initiative must be one that the city council could itself enact; the Legislature has adopted a comprehensive scheme entrusting control of domestic water supplies to the State Department of Public Health, as a result of which a municipal decision to fluoridate becomes an administrative rather than legislative act, hence not subject to the initiative power of the municipal electors. We reject this position.
The courts have evolved various tests for ascertaining the scope of the initiative and referendum powers in their application to counties and cities. These powers apply to county and city measures which are legislative in character. ( Johnston v. City of Claremont, 49 Cal.2d 826, 834 [ 323 P.2d 71]; Hopping v. Council of City of Richmond, 170 Cal. 605, 611 [ 150 P. 977]; Reagan v. City of Sausalito, 210 Cal.App.2d 618, 621 [ 26 Cal.Rptr. 775]; Martin v. Smith, 184 Cal.App.2d 571, 575 [ 7 Cal.Rptr. 725].) They do not extend to executive or administrative actions of the local legislative body. ( Simpson v. Hite, 36 Cal.2d 125, 129 [ 222 P.2d 225]; Housing Authority v. Superior Court, 35 Cal.2d 550, 558 [ 219 P.2d 457]; Chase v. Kalber, 28 Cal.App. 561, 568, et seq. [ 153 P. 397].)
The vague legislative-administrative dichotomy has been crystallized to some extent in the oft-quoted formulation in McKevitt v. City of Sacramento, 55 Cal.App. 117, 124 [ 203 P. 132]: “Acts constituting a declaration of public purpose, and making provision for ways and means of its accomplishment, may be generally classified as calling for the exercise of legislative power. Acts which are to be deemed as acts of administration, and classed among those governmental powers properly assigned to the executive department, are those which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body, or such as are devolved upon it by the organic law of its existence.” ( Reagan v. City of Sausalito, supra, 210 Cal.App.2d at pp. 621-622; Fletcher v. Porter, 203 Cal.App.2d 313, 321 [ 21 Cal.Rptr. 452]; Martin v. Smith, supra, 184 Cal.App.2d at p. 575; see also 5 McQuillin on Municipal Corporations (3d ed.) pp. 255-256; Comment, Limitations on Initiative and Referendum, 3 Stan.L.Rev. 497, 502-504.)
A second test is superimposed upon the first when the local proposal deals with a subject affected by state policy and state law. If the subject is one of statewide concern in which the Legislature has delegated decision-making power, not to the local electors, but to the local council or board as the state's designated agent for local implementation of state policy, the action receives an “administrative” characterization, hence is outside the scope of the initiative and referendum. ( Simpson v. Hite, supra, 36 Cal.2d at p. 131; Riedman v. Brison, 217 Cal. 383, 387-388 [ 18 P.2d 947]; Mervynne v. Acker, 189 Cal.App.2d 558, 562, 565 [ 11 Cal.Rptr. 340]; Alexander v. Mitchell, 119 Cal.App.2d 816, 826 [ 260 P.2d 261].) “When the sole basis for a determination is whether a certain 'contingent effect' exists to warrant local application of state legislation, the exercise of that narrow authority is an administrative act and not a legislative one.” ( Housing Authority v. Superior Court, supra, 35 Cal.2d at p. 558; Andrews v. City of San Bernardino, 175 Cal.App.2d 459, 462 [ 346 P.2d 457].)
On the other hand, the matter may be one of local rather than statewide concern. In that case a local decision which is intrinsically legislative retains that character even in the presence of a state law authorizing or setting limits on the particular field of action. ( Reagan v. City of Sausalito, supra, 210 Cal.App.2d at pp. 625-628; Fletcher v. Porter, supra, 203 Cal.App.2d at pp. 318-319; Mefford v. City of Tulare, 102 Cal.App.2d 919, 923-924 [ 228 P.2d 847].) If the proposal is an exercise of police power directly delegated to counties and cities by article XI, section 11, of the State Constitution, then it is likely to constitute an act of legislation rather than administration. (See Dwyer v. City Council of City of Berkeley, 200 Cal. 505, 511-512 [ 253 P. 932].)
A third test has been formulated to delineate scope of the initiative power, as distinguished from the referendum: It is well recognized that “an ordinance proposed by the electors of a county or of a city in this state under the initiative law must constitute such legislation as the legislative body of such county or city has the power to enact under the law granting, defining and limiting the power of such body.” ( Hurst v. City of Burlingame, 207 Cal. 134, 140 [ 277 P. 308], and quoted in Blotter v. Farrell, 42 Cal.2d 804, 810 [ 270 P.2d 481].)
The operation of public water systems by chartered cities has been characterized as a “municipal affair” rather than a matter of statewide concern. ( City of South Pasadena v. Pasadena Land etc. Co., 152 Cal. 579, 593-594 [ 93 P. 490]; Mefford v. City of Tulare, supra, 102 Cal.App.2d at p. 924.) Nonchartered cities such as Lincoln are authorized by state law to acquire and operate domestic water supply facilities. The authorizing statutes (Gov. Code, §§ 38730, 38742) are very general and evince no intent to exclude local autonomy in the administration of municipal water systems. In California, as in other states, the action of city councils directing fluoridation of municipal water supplies is regarded as an exercise of the local police power. ( DeAryan v. Butler, 119 Cal.App.2d 674, 681-682 [ 260 P.2d 98], cert. den. 347 U.S. 1012 [74 S.Ct. 863, 98 L.Ed. 1135]; Schuringa v. City of Chicago, 30 Ill.2d 504 [198 N.E.2d 326]; Wilson v. City of Council Bluffs, 253 Iowa 162 [110 N.W.2d 569]; Readey v. St. Louis County Water Co. (Mo.) 352 S.W.2d 622; see Note 43 A.L.R.2d 453; Dietz, Fluoridation and Domestic Water Supplies in California, 4 Hast.L.J. 1; Nichols, Freedom of Religion and the Water Supply, 32 So.Cal.L.Rev. 158; Notes, 12 Am.U.L.Rev. 97; 38 Notre Dame Law. 71; 24 Md.L.Rev. 353.)
In recent years fluoridation of public water supplies as a means of reducing the incidence of dental caries among children has been the subject of widespread and heated controversy. Strenuously advocated by the dental and medical experts, it is widely opposed upon a variety of religious, political and scientific grounds. The debate has been heavily annotated and we need not restate easily available references. Many are collected in Dietz, op. cit., and in 38 Notre Dame Lawyer 71, et seq. The traditional goals of water treatment are purity and potability. Fluoridation-aside from claims of merit or demerit-seeks a different goal, medication of public water supplies for a therapeutic purpose.
In meeting its responsibility for local health and safety, a city legislative body may decide that the traditional, accepted goals of water treatment are enough. Alternatively, it may decide to fluoridate, thus aiming for the relatively new and relatively controversial goal of preventive dental therapy. In a real sense, such a decision is one “constituting a declaration of public purpose, and making provision for ways and means of its accomplishment ....” ( McKevitt v. City of Sacramento, supra, 55 Cal.App. at p. 124.) Intrinsically therefore, as well as in its police power origin, the decision to fluoridate is legislative rather than administrative.
This view was adopted by the Supreme Court of Missouri in State ex rel. Whittington v. Strahm (Mo.) 374 S.W.2d 127. There the court upheld a referendum against a municipal ordinance clothed as a routine appropriation for the purchase of fluoridation equipment for the city water plant. Noting that the addition of fluoride went beyond the established policy of adding chemicals for purification, the court held that the decision to fluoridate was legislative. (See also discussion in 43 A.L.R.2d at pp. 453-454.)
Contrary to the position taken by the city of Lincoln, the statutory scheme empowering the State Board of Public Health to approve or disapprove methods of water treatment does not transmute the city council into an administrative agent of state policy. The Health and Safety Code requires municipal and other suppliers of water for domestic purposes to secure permits from the state board. (§ 4011.) Methods of water treatment pursuant to an existing permit may not be changed without application for and receipt of an amended permit. (§ 4011.5.) Permit applications must be accompanied by plans and specifications showing all the sanitary and health conditions affecting the system. (§ 4012.) If the state board determines, it may require an applicant or permit holder to make changes necessary to ensure that the water shall be “pure, wholesome, and potable.” (§§ 4016-4019.) Upon finding that the water is pure, wholesome and potable, the board shall grant a permit. (§ 4021.) A permit may be rejected or suspended if the board finds that the permittee is supplying impure, unpotable or health- endangering water. (§ 4022.) It is unlawful to furnish water for human consumption or domestic purposes which is impure, unwholesome, unpotable, polluted or dangerous to health. (§ 4031.)
These statutes, constituting the only statutory regulation of the quality of water for human consumption, are aimed at the objectives of safety and potability. ( DeAryan v. Butler, supra, 119 Cal.App.2d at p. 681.) Essentially, they cast the state board in the role of a censor upon local decisions. Within the relatively wide latitude permitted by health and potability standards, proposals for treatment or changes in treatment originate with the municipal water supplier, not with the state. Section 4021, in mandatory terms, requires that a permit be granted if the board makes a finding of purity and potability, demonstrating a design to promote rather than destroy local autonomy over treatment methods up to the point where purity and potability are threatened.
This statutory plan does not incorporate any standard dealing with the fortification of water for therapeutic purposes. To be sure, the addition of fluoride to public water, or the cessation of fluoridation under an existing permit, may be accomplished only with permission of the state board. This permission, however, does not turn on the protection of dental health. If the state board finds that the initiation of fluoride treatment will not affect the purity, potability or safety of the water, section 4021 demands that a permit be issued. If the board finds that cessation of fluoride treatment will not make the water impure, unpotable or dangerous, it must permit cessation. This scheme of statutory regulation does not express any state policy, one way or the other, on fluoridation as a therapeutic measure. Instead, it is focused on the orthodox “pre-fluoridation” goals of water treatment. Thus, in deciding whether or not to fluoridate, a city council acts as the legislative exponent of local policy, not as the administrative instrumentality of state policy. The scheme of state legislation does not affect the intrinsically legislative character of a decision for or against fluoridation of municipal water supplies.
On December 4, 1963, the State Board of Public Health issued an amended permit to the city of Lincoln for a program of water treatment including fluoridation. We take judicial notice of that action. (Code Civ. Proc., § 1875, subd. 3.) The proposed initiative ordinance would prohibit the method of treatment now allowed by the state permit. State law, however, prevents modification of the city's treatment method without a further amendment of its permit. (Health & Saf. Code, § 4011.5.) Adverting to the pronouncement that an initiative ordinance must constitute such legislation as the council itself has power to pass, the city now urges that the city council would not have power to decree cessation of fluoridation without a state permit, ergo the voters possess no greater power.
The argument comes close to an assertion that a council decision to fluoridate, once implemented, may not be reversed by the very council which made it. As we have held, the proposed initiative ordinance would operate in an area of local concern only partially occupied by state law. (Cf. In re Lane, 58 Cal.2d 99 [ 22 Cal.Rptr. 857, 372 P.2d 897].) It may be enforced, of course, only if it is “not in conflict with general laws.” (Cal. Const., art. XI, § 11; Simpson v. City of Los Angeles, 40 Cal.2d 271, 278 [ 253 P.2d 464].) The fallacy of the city's argument is its assumption of a nonexistent conflict. If adopted by the electors, the initiative ordinance will receive an interpretation which confers validity rather than one which results in nullity. (Civ. Code, § 3541; Brooks v. Stewart, 97 Cal.App.2d 385, 390 [ 218 P.2d 56]; 6 McQuillin on Municipal Corporations (3d ed.) pp. 122-123.) Unless such a construction will defeat its apparent purpose, it is to be construed in harmony with applicable provisions of state law. (6 McQuillin, op. cit., p. 101.) Upon adoption of the ordinance the state permit law would become one of its implicit conditions, contemplating the city's application to the State Board of Public Health for an amended permit and termination of fluoridation upon issuance of a permit approving termination.
Judgment affirmed.
Pierce, P. J., and Van Dyke, J., FN* concurred.
FN* Retired Presiding Justice of the District Court of Appeal sitting under assignment by the Chairman of the Judicial Council.

CHIN, J.
Plaintiffs, residents of the San Gabriel Valley in Southern California, filed lawsuits in superior court, alleging, inter alia, that certain water companies provided them unsafe drinking water causing death, personal injury, and property damage. Public Utilities Code section 1759, FN1 however, precludes superior court jurisdiction to review any order or decision of the California Public Utilities Commission (PUC) or to interfere with the PUC in the performance of its official duties. We granted review in this case to determine whether section 1759 bars the superior court actions. As explained below, we conclude that the PUC's regulation of water quality and safety does not preempt damage claims alleging violations of federal and state drinking water standards against the water providers subject to PUC regulation, but that the remaining claims against those water providers are preempted. We further conclude that the causes of action against those defendants not subject to PUC regulation are not barred.
FN1. Unless stated otherwise, all statutory references are to the Public Utilities Code.
PROCEDURAL HISTORY
A. Superior Court Actions
1. Adler, Celi and Boswell Actions
Three groups of plaintiffs, Jeff Adler and over 100 coplaintiffs, Loretta Celi and about 20 other plaintiffs, and Christine Boswell and 13 other plaintiffs, each filed separate actions for damages in the Los Angeles County Superior Court. The Adler complaint named as defendants Southern California Water Company, California American Water Company, and eight corporate parties that are not water providers or regulated by the PUC (hereafter referred to as industrial defendants). The Celi complaint named as defendants San Gabriel Valley Water Company and the same eight industrial defendants. The Boswell complaint named as defendants Suburban Water Systems, Southwest Water Company, Covina Irrigating Company, California Domestic Water Company, and the same industrial defendants named in the Adler and Celi complaints. Southern California Water Company, California American Water Company, San Gabriel Valley Water Company, Suburban Water Systems, and Southwest Water Company are water providers subject to PUC regulation (hereafter referred to as regulated utilities). Covina Irrigating Company and California Domestic Water Company are public water districts and mutual water companies not subject to PUC regulation (hereafter referred to as nonregulated water providers).
The complaints sought damages based on causes of action for negligence, strict liability, trespass, public and private nuisance, and fraudulent concealment. Some plaintiffs also sued for wrongful death. These causes of action were based on the following allegations: that defendant water companies had provided the contaminated well water to plaintiffs, longtime residents of the San Gabriel Valley, over a period of years; that the water contaminants included trichloroethylene, perchloroethene, carbon tetrachloride, and perchlorates; and that as a result, plaintiffs suffered physical and mental pain and suffering, including fear of cancer, and property damage. The complaints further alleged that the industrial defendants disposed of toxic substances in the ground.
2. Santamaria Action
Kristin Santamaria and some 300 coplaintiffs filed a separate action in Los Angeles County against many of the same defendants. The complaint named additional industrial defendants, as well as nonregulated water providers Valley County Water District and San Gabriel County Municipal Water District. In addition to the same causes of action contained in the Adler, Boswell and Celi complaints, the Santamaria complaint alleged conspiracy, battery, and nine causes of action for unfair business practices based on the same kinds of conduct and toxic substances in the drinking water as alleged in the other lawsuits. The Santamaria plaintiffs prayed for damages, as well as injunctions against disposing toxic materials, supplying contaminated water, and engaging in unlawful business practices. They also sought medical monitoring, a constructive trust against defendants' property to pay for plaintiffs' injuries, and an order compelling defendants to disgorge profits and restore money acquired through unlawful business practices.
The court changed the venue of the Santamaria action to Ventura County on motion of several defendants.
B. PUC Investigation
In response to the lawsuits filed against the regulated water utilities, the PUC filed an order instituting an investigation on March 12, 1998. (Cal.P.U.C. Order Instituting Investigation No. 98-03-013 (Mar. 12, 1998) [1998 Cal.P.U.C. Lexis 73].) Concerned that the complaints “raise public concerns over the safety of the drinking water supplies of these utilities,” (id., 1998 Cal.P.U.C. Lexis 73 at p. 2) the PUC instituted “a full-scale investigation” (id., 1998 Cal.P.U.C. Lexis 73 at p. 3) to determine (1) whether current drinking water standards adequately protect the public health and safety; (2) whether the regulated water utilities have complied with those standards; (3) what remedies should apply for noncompliance with safe drinking water standards; and (4) whether the occurrence of temporary excursions of contaminant levels above regulatory thresholds are acceptable “taking into consideration economic, technological, and public health and safety issues, and compliance with Public Utilities Code Section 770.” (Cal.P.U.C. Order No. 98-03-013, supra, 1998 Cal.P.U.C. Lexis 73 at p. 10.) The PUC limited its investigation to the operations and practices of the named defendant public utilities and all other class A and class B public utility water companies,FN2 which collectively serve over 90 percent of all public utility water customers in California. (Cal.P.U.C. Order No. 98-03-013, supra, 1998 Cal.P.U.C. Lexis 73 at p. 4.)
FN2. Class A utilities are those with more than 10,000 service connections. Class B utilities have more than 2,000 connections. (Cal.P.U.C. Final Opinion Resolving Substantive Water Quality Issues (Nov. 2, 2000) Dec. No. 00-11-014 [2000 Cal.P.U.C. Lexis 722, 1, fn. 1].)
Plaintiffs in all four actions intervened in the PUC's investigation. They moved to dismiss or limit the investigation, on the ground the PUC lacked subject matter jurisdiction over the quality of drinking water service provided by regulated utilities. On June 10, 1999, the PUC issued an interim opinion denying plaintiffs' motion. (Cal.P.U.C. Interim Opinion Denying Motions Challenging Jurisdiction To Conduct Investigation 98-03-013 (June 10, 1999) Dec. No. 99-06-054 [1999 Cal.P.U.C. Lexis 312].) Rejecting plaintiffs' jurisdictional argument, the PUC found that it possessed authority to regulate the quality of the service and the drinking water that the water utilities provide, that it had exercised such authority for decades, and that it continued to do so. It determined that its jurisdictional decision was final and thus subject to rehearing and appellate review. On September 16, 1999, the PUC denied plaintiffs' application for rehearing. (Cal.P.U.C. Order Modifying Decision 99-06-054 For Purposes of Clarification and Denying Rehearing (Sept. 16, 1999) Dec. No. 99-09-073 [1999 Cal.P.U.C. Lexis 594].) Plaintiffs did not seek review of the PUC's jurisdictional decision in this court under section 1756.FN3
FN3. Plaintiffs withdrew as interveners after the PUC's denial of the motion to dismiss. (Cal.P.U.C. Final Opinion Resolving Motions to Compel Discovery and Motions to Withdraw From Proceeding (Nov. 21, 2000) Dec. No. 00-11-036.)
The regulated water utilities, the California Department of Health Services (DHS), the water division staff of the PUC, and some of the industrial defendants in the lawsuits participated in the investigation. After 31 months of investigation and study, the PUC issued its “Final Opinion Resolving Substantive Water Quality Issues” on November 2, 2000. (Cal.P.U.C. Final Opinion Resolving Substantive Water Quality Issues, supra, Dec. No. 00-11-014 [2000 Cal.P.U.C. Lexis 722].) The PUC concluded that existing DHS drinking water quality standards adequately protect the public health and safety and that, over the past 25 years, the regulated utilities, including defendants in these lawsuits, had provided water that was “ ‘in no way harmful or dangerous to health’ ” and had satisfactorily complied with DHS drinking water quality requirements. (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at p. 39.) It also gave notice of its intention to initiate a future investigation or rulemaking proceeding to investigate specific water quality issues. (Cal.P.U.C. Dec. No. 00-11-014, supra, 2000 Cal.P.U.C. Lexis 777 at pp. 71, 73-74.) FN4
FN4. The Court of Appeal granted judicial notice of all proceedings before the PUC, including PUC Decision No. 99-06-054. However, the PUC's modification order and denial of rehearing, its final opinion resolving motions to compel discovery and to withdraw from proceeding, and its final opinion resolving the substantive water quality issues occurred after the filing of the Court of Appeal opinion. The regulated water providers request that we take judicial notice of the modification order and denial of rehearing and the final opinion resolving motions to compel discovery and to withdraw from proceedings. Several of the industrial defendants join the regulated water providers in requesting that we take judicial notice of the PUC's final opinion in its investigation. Because the subsequent PUC proceedings are a continuation of the PUC's investigation into water quality safety issues, we grant those requests. (Pratt v. Coast Trucking, Inc. (1964) 228 Cal.App.2d 139, 143-144, 39 Cal.Rptr. 332.)
C. Superior Court and Court of Appeal Rulings
In the meantime, in response to PUC Order No. 98-03-013 instituting an investigation of water quality safety, defendants in the four superior court actions sought dismissal on the ground that the litigation was barred by section 1759. In the alternative, certain defendants requested stays of the court proceedings pending the PUC's investigation. On June 24, 1998, the superior court in the Adler, Celi, and Boswell actions stayed all proceedings until the completion of the PUC's investigation. On August 27, 1998, the Ventura County Superior Court in the Santamaria action sustained the regulated utilities' demurrers without leave to amend, but overruled the demurrers of the nonregulated water providers and the industrial defendants and denied their motions for a stay of proceedings. The court later accepted a stipulation that the proceedings be stayed pending review by the Court of Appeal.
Eight petitions for writs of mandate were filed in the Court of Appeal. The Adler, Celi, and Boswell plaintiffs and the regulated utility defendants filed petitions challenging the stay orders of the Los Angeles County Superior Court. In the Santamaria action, the nonregulated water providers and the industrial defendants filed petitions challenging Ventura County Superior Court's overruling of the demurrers and denial of the motions for a stay, while the plaintiffs appealed the order granting the demurrer of the regulated utility defendants. The Court of Appeal issued orders to show cause on the petitions and consolidated the appeal with the proceedings on all of the writs.
On September 1, 1999, the Court of Appeal ruled that the PUC's statutory authority over water quality and its exercise of jurisdiction in addressing water quality issues preempted the four actions against the regulated utilities, but did not preempt the actions against the nonregulated water providers and the industrial defendants. Accordingly, it ruled that the Los Angeles County Superior Court in the Adler, Celi, and Boswell actions erred (1) in staying the proceedings instead of ruling on the merits of the preemption issue; (2) in failing to sustain the demurrers and grant the summary judgment motion of the regulated utilities; and (3) in failing to overrule the demurrers and deny the judgment on the pleadings of the nonregulated water providers and industrial defendants. It further upheld the Ventura County Superior Court's rulings in the Santamaria action in all respects.
We granted the petitions for review filed by the Santamaria plaintiffs, and by the nonregulated water providers and the industrial defendants in all four lawsuits.FN5
FN5. The Adler, Boswell, and Celi plaintiffs did not seek review.
DISCUSSION
“ ‘The [PUC] is a state agency of constitutional origin with far-reaching duties, functions and powers. (Cal. Const., art. XII, §§ 1-6.) The Constitution confers broad authority on the [PUC] to regulate utilities, including the power to fix rates, establish rules, hold various types of hearings, award reparation, and establish its own procedures. (Id., §§ 2, 4, 6.)’ ” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 914-915, 55 Cal.Rptr.2d 724, 920 P.2d 669 (Covalt).) In addition to those powers expressly conferred on the PUC, the California Constitution confers broad authority on the Legislature to regulate public utilities and to delegate regulatory functions to the PUC. (Cal. Const., art. XII, §§ 3, 5.)
Consistent with these constitutional mandates, the Legislature has granted the PUC comprehensive jurisdiction to regulate the operation and safety of public utilities. (§§ 701, 761, 768, 770, subd. (a).) Section 701 authorizes the PUC to “supervise and regulate every public utility in the State and [to] do all things ... which are necessary and convenient in the exercise of such power and jurisdiction.” Section 702 commands every public utility to obey the PUC's orders, decisions, directions, or rules “in any way relating to or affecting its business as a public utility....”
The California Constitution also confers plenary power on the Legislature to “establish the manner and scope of review of commission action in a court of record....” (Cal. Const., art. XII, § 5.) In the exercise of that power, the Legislature has chosen to limit the jurisdiction of judicial review of the PUC's decisions. Section 1759, subdivision (a), provides that: “No court of this state, except the Supreme Court and the court of appeal, to the extent specified in this article, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties, as provided by law and the rules of court.”
Defendants, which include the regulated and nonregulated water providers and the industrial defendants, contend that section 1759 precludes plaintiffs' actions in superior court. In response, plaintiffs argue that section 1759 is inapplicable and that section 2106 permits their lawsuit against the regulated utilities. Section 2106 provides in pertinent part: “Any public utility which does, causes to be done, or permits any act, matter, or thing prohibited or declared unlawful, or which omits to do any act, matter, or thing required to be done, either by the Constitution, or any law of this State, or any other order or decision of the commission, shall be liable to the persons or corporations affected thereby for all loss, damages, or injury caused thereby or resulting therefrom.... An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction by any corporation or person.”
In Waters v. Pacific Telephone Co. (1974) 12 Cal.3d 1, 114 Cal.Rptr. 753, 523 P.2d 1161 (Waters ), we concluded that “in order to resolve the potential conflict between sections 1759 and 2106, the latter section must be construed as limited to those situations in which an award of damages would not hinder or frustrate the [PUC's] declared supervisory and regulatory policies.” (Id. at p. 4, 114 Cal.Rptr. 753, 523 P.2d 1161.) There, the plaintiffs sued a telephone company in superior court for failing to furnish adequate telephone service. We noted that the PUC, in approving rates charged, had relied on a policy it adopted of limiting liability of telephone utilities for acts of ordinary negligence to a specified credit allowance as set forth in approved tariff schedules. We held that section 1759 barred the superior court action because damage awards would conflict with the PUC's policies and interfere with its regulation of telephone utilities.
We again addressed the relationship between sections 1759 and 2106 in Covalt, supra, 13 Cal.4th 893, 55 Cal.Rptr.2d 724, 920 P.2d 669, in which the issue was whether section 1759 barred a superior court action for nuisance and property damage allegedly caused by electric and magnetic fields (EMF's) from power lines owned and operated by a public utility. (Covalt, supra, at p. 903, 55 Cal.Rptr.2d 724, 920 P.2d 669.) In applying section 1759, we used a three-part test: (1) whether the PUC had the authority to adopt a regulatory policy on whether EMF's are a public health risk and what steps the utilities should take, if any, to minimize the risk; (2) whether the PUC had exercised that authority; and (3) whether the superior court action would hinder or interfere with the PUC's exercise of regulatory authority with respect to EMF's. (Covalt, supra, at pp. 923, 926, 935, 55 Cal.Rptr.2d 724, 920 P.2d 669.) We found preemption after answering all three questions in the affirmative.
Plaintiffs argue that Covalt 's three prongs have not been met in this case. They argue that the PUC lacks the authority to regulate water quality, that it has never exercised that authority until its recent investigation on water quality, and that the complaints in the lawsuits would not interfere with the PUC's exercise of regulatory authority. We reject plaintiffs' first two arguments, but agree that some of the damage claims would not interfere with any ongoing PUC regulatory program.
A. Section 1759 Bars the Injunctive Relief Claims and Some of the Damage Claims Against the Regulated Water Providers
1. Background Information
Since the enactment of the Public Utilities Act in 1911 (Stats.1911, Ex.Sess.1911, ch. 14, § 1, p. 18), the PUC has regulated public utility water companies. (See In re Application Southern California Mountain W. Co. (1912) 1 Cal.P.U.C. 841.) From 1912 to 1956, the PUC exercised its public health and safety authority over public utility water service on a case-by-case basis; it examined water quality issues and, where necessary, required water utilities to take specific actions to ensure safe drinking water and authorized rate recovery for the associated costs. (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at pp. 30, fn. 18, 38.) On its own motion in 1955, the PUC initiated a comprehensive investigation to establish “uniform service standards and service rules applicable to all privately-owned, public utility water companies in the State of California.” (Re Adoption of Service Standards and Service Rules for Water Utilities (1956) 55 Cal.P.U.C. 56.) The proceeding resulted in the adoption of general order No. 103, which established uniform standards of water quality service for regulated utilities, including specific requirements for the source of water, operation of the water supply system, and water testing requirements. (Ibid.)
General order No. 103, which has been amended during the intervening years, presently provides that “ ‘[a]ny utility serving water for human consumption or for domestic uses shall provide water that is wholesome, potable, in no way harmful or dangerous to health and, insofar as practicable, free from objectionable odors, taste, color, and turbidity.’ ” (Cited by Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at pp. 39-40.) It requires each utility to comply with the water quality standards of the DHS and the United States Environmental Protection Agency (EPA) and states that compliance with DHS regulations constitutes compliance with the PUC's rules, “ ‘except as otherwise ordered by the commission.’ ” FN6 (Id., 1999 Cal.P.U.C. Lexis 312 at p. 40.)
FN6. Although general order No. 103 has been amended during the intervening years, the policy of requiring wholesome, potable, and healthful water and of adopting the DHS health standards has remained the same since its inception. (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at pp. 39-40.)
Until 1974, the PUC's authority to determine the appropriate standards for the water quality and service provided by public utility water systems was limited only by the statutory requirement that such standards be “just and reasonable” and “adequate and serviceable.” (§ 770; Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at p. 44.) However, in 1974, Congress enacted the federal Safe Drinking Water Act (federal SDWA) (42 U.S.C. § 300f et seq.), which prohibits states from enacting drinking water laws less stringent than those established by the EPA. (42 U.S.C. § 300g.) “Congress occupied the field of public drinking water regulation with its enactment of the [federal] SDWA. ‘The purpose of the [federal SDWA] is to assure that water supply systems serving the public meet minimum national standards for protection of public health.’ [Citation.] With minor exceptions, the SDWA applies ‘to each public water system in each State.’ 42 U.S.C. § 300g.... [A]lthough the primary responsibility for enforcement remains with the States, the Administrator is empowered to enforce State compliance. Id. §§ 300g-2, 300g-3.” (Mattoon v. City of Pittsfield (1st Cir.1992) 980 F.2d 1, 4.) Accordingly, the federal SDWA grants states primary authority to implement the provisions of the federal standards and allows states to set stricter water quality standards than those of the federal government. (42 U.S.C. § 300g-2(a); see 42 U.S.C. § 300g-1(b).) Although the federal SDWA preempts federal common law nuisance actions (Mattoon v. City of Pittsfield, supra, 980 F.2d at p. 4), state common law is not preempted. (United States v. Hooker Chemical & Plastics Corp. (W.D.N.Y.1985) 607 F.Supp. 1052, 1055, fn. 3.)
In 1976, the Legislature enacted the state Safe Drinking Water Act (state SDWA). (Stats.1976, ch. 1087, § 2.5, pp. 4918-4929, adding Health & Saf.Code, former § 4010 et seq., currently codified at Health & Saf.Code, § 116275 et seq.) When the Legislature enacted the state SDWA, it assumed the primary authority to administer the federal act. The state SDWA, administered by the DHS, establishes standards at least as stringent as the federal SDWA and is intended to be “more protective of public health” than the minimum federal standards. (Health & Saf.Code, §§ 116270, subd. (f), 116325.) The Court of Appeal below described the state SDWA.
“ Paredes v. County of Fresno (1988) 203 Cal.App.3d 1 [249 Cal.Rptr. 593] (Paredes ) described in some detail the California SDWA, in addressing the regulation of water contaminated with DBCP, a toxic substance not specifically in issue in our case. ‘The California Legislature has declared water delivered by public water systems in this state should be at all times pure, wholesome, and potable. It has adopted procedures to be followed in an effort to accomplish this objective in [Health and Safety Code] sections 4010.1 through 4039.5. ( [Health & Saf.Code,] § 4010.) These sections [which have since been amended and moved to Health and Safety Code sections 116275 through 117130 (Stats.1995, ch. 415, § 6)] describe the permit process for the operation of a public water system ( [Health & Saf.Code,] art. 1, §§ 4011-4022), the regulation of the quality of the water supply of a public water system ( [id.,] art. 2, §§ 4023.5-4030.7), violations ( [id.,] art. 3, § 4031), remedies ( [id.,] art. 4, §§ 4032-4036.5), judicial review ( [id.,] art. 4.5, § 4037), and applicable crimes and penalties ( [id.,] art. 5, §§ 4037.5-4039.5).
“ ‘Any person who operates a public water system must: comply with primary and secondary drinking water standards; ensure the system will not be subject to backflow under normal operating conditions; and provide a reliable and adequate supply of pure, wholesome, healthful, and potable water. ( [Health & Saf.Code,] § 4017.) Primary drinking water standards specify maximum levels of contaminants, which, in the judgment of the DHS director, may have an adverse effect on the health of persons. ( [Id.,] § 4010.1, subd. (b)(1).) Secondary drinking water standards specify maximum contaminant levels which, in the judgment of the director, are necessary to protect public welfare. Secondary drinking water standards may apply to any drinking water contaminant which may: (1) adversely affect the odor or appearance of such water and cause a substantial number of persons served by the public water system to discontinue its use; or (2) otherwise adversely affect the public welfare. ( [Id.,] § 4010.1, subd. (b)(2).) Maximum contaminant level means the maximum permissible level of a contaminant in water. ( [Id.,] § 4010.1, subd. (c).)
“ ‘The regulations establishing primary and secondary drinking water standards for public water systems are contained in title 22 of California Code of Regulations, section 64401 et seq. (Cal.Code Regs., tit. 22, § 64401, subd. (a).) Those drinking water standards are based upon the national interim primary and secondary drinking water regulations contained in the Code of Federal Regulations.’ (Paredes, supra, 203 Cal.App.3d at p. 5, 249 Cal.Rptr. 593, fn. omitted.)
“In California, when a contaminant is discovered for which there is no primary or secondary standard, the DHS develops an ‘action level’ for it. In the early 1980's, the Legislature adopted a program for detecting and monitoring organic chemical contaminants for which mandatory levels did not exist. Legislation authorized the DHS to require monitoring for these unregulated chemicals and notification of the public when action levels were exceeded. DHS implemented the legislation by adopting guidelines for responding when action levels were exceeded. (Paredes, supra, 203 Cal.App.3d at pp. 6-7, 249 Cal.Rptr. 593.)
“Although the Legislature moved the Safe Drinking Water Act to Health and Safety Code section 116275 et seq. during a statutory reorganization in 1995 (Stats.1995, ch. 415, § 6 ...) and amended it in subsequent years (Stats.1996, ch. 755, §§ 1-12 ...; Stats.1997, ch. 734, §§ 1-15 ...), the general regulatory scheme described in Paredes has remained intact.”
2. The PUC Has Authority to Enforce Water Quality and Limited Authority to Adopt Water Quality Standards for Regulated Utilities
Plaintiffs argue that the DHS and the EPA have exclusive authority to set standards and enforce laws related to the state and federal SDWA's and that the regulation of water quality is the function of the DHS, not the PUC. Plaintiffs are correct that the Legislature has vested in DHS primary responsibility for the administration of the safe drinking water laws. (Health & Saf.Code, § 116325.) However, they are incorrect in asserting that the PUC has no authority to set and enforce drinking water standards when regulating water providers. The Legislature has vested the PUC with general and specific powers to ensure the health, safety, and availability of the public's drinking water.
Article X, section 5 of the California Constitution states: “The use of all water now appropriated, or that may hereafter be appropriated, for sale, rental, or distribution, is hereby declared to be a public use, and subject to the regulation and control of the State, in the manner to be prescribed by law.” Article XII, section 3 of the California Constitution provides that “Private corporations and persons that own, operate, control, or manage a line, plant, or system for ... the production, generation, transmission, or furnishing of ... water ... directly or indirectly to or for the public ... are public utilities subject to control by the Legislature.” Such public utilities are thereby subject to regulation by the PUC. (Cal. Const, art. XII, § 5; Pub. Util.Code, §§ 701, 761, 770, 2701.) In regulating utilities, the PUC is authorized to “do all things ... which are necessary and convenient in the exercise of [its] power and jurisdiction” (§ 701) and required to ensure that the service and equipment of any public utility protect the public health and safety. (§§ 451,FN7 768. FN8) Drinking water quality affects health and safety and is therefore within the PUC's regulatory jurisdiction over public utility water companies to ensure that public health and safety are protected. (§§ 451, 739.8, subd. (a), 761, 768, 770, subd. (b); see Citizens Utilities Co. v. Superior Court (1976) 56 Cal.App.3d 399, 408, 128 Cal.Rptr. 582.)
FN7. Section 451 provides in pertinent part: “Every public utility shall furnish and maintain such adequate, efficient, just, and reasonable service, instrumentalities, equipment, and facilities ... as are necessary to promote the safety, health, comfort, and convenience of its patrons ... and the public.”
FN8. Section 768 provides in pertinent part: “The commission may, after a hearing, require every public utility to construct, maintain, and operate its line, plant, system, equipment, apparatus, tracks, and premises in a manner so as to promote and safeguard the health and safety of its ... customers, and the public.... The commission may establish uniform or other standards of construction and equipment, and require the performance of any other act which the health or safety of its ... customers, or the public may demand....”
The PUC's most obvious regulatory authority includes the regulation of rates: “Access to an adequate supply of healthful water is a basic necessity of human life, and shall be made available to all residents of California at an affordable cost.” (§ 739.8, subd. (a).)
In addition, section 770 addresses water quality regulation and provides in pertinent part: “The commission may after hearing: [¶] ... [¶] (b) Ascertain and fix adequate and serviceable standards for the measurement of ... quality ... or other condition pertaining to the supply of the product, commodity, or service furnished or rendered by any such public utility. No standard of the commission applicable to any water corporation shall be inconsistent with the regulations and standards of the State Department of Health pursuant to Chapter 4 (commencing with Section 116275) of Part 12 of Division 104 of the Health and Safety Code.”
In 1974, when Congress first passed the federal SDWA, the Legislature amended section 770, subdivision (b), to include the following proscription: “No standard of the commission relating to water quality, however, shall be applicable to any water corporation which is required to comply with the regulations and standards of the State Department of Health pursuant to Chapter 7 (commencing with Section 4010) of Part 1 of Division 5 of the Health and Safety Code.” (Stats.1974, ch. 229, § 1, p. 434.) In 1976, the Legislature again amended subdivision (b) to eliminate the proscription and instead to provide that: “No standard of the commission applicable to any water corporation shall be inconsistent with the regulations and standards of the State Department of Health pursuant to Chapter 7 (commencing with Section 4010) of Part 1 of Division 5 of the Health and Safety Code.” (Stats.1976, ch. 1087, § 4, p. 4929, italics added; see Stats.1976, ch. 1037, § 3, p. 4648.) Thus, the present statute gives the PUC authority to develop and apply standards for the quality of the product or service provided by regulated water companies as long as they are not “inconsistent” with the regulations and standards of DHS.FN9
FN9. In its final opinion on water quality, the PUC ordered a subsequent investigation and/or rulemaking proceeding, which will consider (1) whether DHS's action levels, which DHS categorizes as nonmandatory and nonenforceable levels, should be mandatory for regulated utilities, and (2) whether the utilities complied with general order No. 103 standards in existence before the adoption by DHS of maximum contaminant levels and action levels. (Cal.P.U.C. Dec. No. 00-11-014, supra, 2000 Cal.P.U.C. Lexis 722 at pp. 20, 65, 73-74.) A PUC rule requiring regulated water utilities to meet DHS action levels would not be inconsistent with mandatory DHS water quality standards. Indeed, during the investigation, the DHS suggested that the PUC require utility compliance with the DHS action levels and customer notification when DHS action levels are exceeded. (Cal.P.U.C. Dec. No. 00-11-014, supra, 2000 Cal.P.U.C. Lexis 722 at p. 37.)
Nevertheless, whether the PUC has independent authority to set water quality standards is not dispositive. The PUC has constitutional and statutory authority and responsibilities to ensure that the regulated water utilities provide service (e.g., water) that protects the public health and safety. (§§ 701, 451, 768.) While the water quality standards may be the product of DHS study and expertise, they are the PUC standards as well. The Legislature, by mandating that the PUC standards cannot be “inconsistent” with DHS water quality standards, has established that the DHS safety standards are the minimum standards for the PUC to use in performing its regulatory function of ensuring compliance with safety standards.
Since 1956, the PUC's supervisory policy, as embodied in general order No. 103, has required public utilities to comply with the water quality standards of the relevant state and federal health agencies, “ ‘except as otherwise ordered by the Commission.’ ” (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at p. 40.) In implementing that policy, the PUC can require prescribed water quality corrective actions, both in rate and complaint cases affecting particular utilities and in industrywide investigations such as the 1998-2000 investigation into water quality. (Pub. Util. Code, §§ 1701-1702, 2101; Health & Saf.Code, § 116465; Ford v. Pacific Gas & Electric Co. (1997) 60 Cal.App.4th 696, 707, 70 Cal.Rptr.2d 359; see also Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 907, 160 Cal.Rptr. 124, 603 P.2d 41.) It can enforce its orders and decisions by suit (Pub.Util.Code, § 2101), by mandamus or injunction (id., §§ 2102-2103), by actions to recover penalties (id., §§ 2104, 2107), and by contempt proceedings (id., § 2113). Thus, the PUC has the authority to adopt a policy on water quality and to take the appropriate actions, if any, to ensure water safety.
3. The PUC Has Undertaken the Ongoing Regulation of Drinking Water Quality
As stated above, the PUC exercised its public health and safety authority over public utility water service on a case-by-case basis from 1912 to 1956 and adopted general order No. 103 in 1956. The PUC and DHS confirmed their partnership on water quality issues in a joint memorandum of understanding in 1987, which was updated in 1996. (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at p. 28, fn. 16.) It acknowledged “their joint goal to ensure that California water companies regulated by PUC are economically maintaining safe and reliable water supplies.” (Id., 1999 Cal.P.U.C. Lexis 312 at p. 111.) The memorandum defined DHS's responsibility for identifying contaminants and the improvements necessary to provide safe water supplies, and for initiating enforcement actions under the state SDWA; the PUC retained responsibility for approving rate changes to finance improvements, for informing customers, and for monitoring non-SDWA water quality requirements. The two agencies agreed to work together and share information. (Id., 1999 Cal.P.U.C. Lexis 312 at pp. 104-120.)
In exercising its regulatory authority over water quality, the PUC has decided what constitutes adequate compliance with applicable water quality standards, whether any increased water treatment is justified in light of its impact on ratepayers, and what marginal increases in safety may be gained. (See, e.g., California-American Water Co. (1986) 20 Cal.P.U.C.2d 596 [PUC refused to authorize water utility to install water quality treatment facility, and instead ordered it to evaluate other, less costly alternatives]; San Gabriel Valley Water Co. (1998) Cal.P.U.C. Dec. No. 98-08-034 [1998 Cal.P.U.C. Lexis 575], 1998 WL 1813233 [PUC approved water utility's request for additional water quality treatment facilities, rejecting ratepayers' argument that new treatment plant should be allowed only when prescribed maximum contaminant levels exceed DHS standards].)
The Court of Appeal below noted other actions by the PUC with respect to the quality of drinking water provided by public utilities: “In 1983, it adopted a service improvement policy, requiring water utilities to identify the most cost-effective alternatives for dealing with water service problems, including contamination. In 1986, it issued guidelines for water quality improvement projects. In 1990, it issued a risk and return report, addressing the development of drinking water quality standards, new testing procedures, and application of drinking water standards to large and small water utilities. In 1994, it issued a decision concluding that drinking water quality standards would require investment of $50 million to $200 million in water treatment facilities over the next several years. In 1996, it authorized water utilities to establish accounts to record and recover expenses incurred in complying with EPA drinking water regulations and paying DHS testing and regulatory fees. In addition, the commission issued a series of individual rate decisions analyzing health standards and individual communities' abilities to absorb the costs of varying treatment levels.”
The PUC itself has stated: “[T]he Commission's cost setting and regulating role is inextricably bound to the quality of water provided by the regulated utilities.” (Cal.P.U.C. Dec. No. 99-09-073, supra, 1999 Cal.P.U.C. Lexis 594 at p. 9.) “Most often, authorization for corrective or preventative water quality measures occurs in a rate case.” (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at p. 31.) In reviewing a water utility's rate increase application, the PUC must review the reasonableness of the utility's proposed investment, its compliance with health department regulations, its implementation of previous PUC decisions affecting water quality, and its compliance with general order No. 103. (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at pp. 31-32.) Thus, in setting rates at affordable levels, the PUC must balance the quality and cost of water services.
In its final opinion, the PUC explained the basis for its concurrent jurisdiction with the DHS over water quality safety: “A jurisdictional structure that preserves the authority of both DHS and the [PUC] over the quality of water provided to residents and businesses by private water companies is consistent with the original intent of the 1911 Act giving the [PUC] authority over water issues. It remains crucial to the effective regulation of public utilities. The expertise of the [PUC], however, has always centered around the creation of financial and regulatory incentives that foster and support socially desired behavior from firms that operate in a marketplace characterized by limited competition. Thus, it is clearly reasonable that the Legislature continue to marshal the expertise of the [PUC] as well as the health-science expertise of DHS to support a public interest as critical as the quality of drinking water.” (Cal.P.U.C. Dec. No. 00-11-014, supra, 2000 Cal.P.U.C. Lexis 722 at pp. 17-18.) As shown by the DHS's participation in the PUC's recent water quality investigation, the PUC and the DHS continue to work together to ensure that public water utilities provide safe and healthy water.
Plaintiffs argue that their lawsuits should not be preempted because the PUC has deferred to the DHS to set and enforce water quality standards, has no expertise in water quality issues, and has focused on ratemaking. Our decision in Covalt leads us to a different estimation of PUC's regulatory involvement. In Covalt, notwithstanding the PUC's deference to the DHS's expertise on health issues, we concluded that the PUC had preemptively exercised its authority to adopt a policy on powerline EMF's. (Covalt, supra, 13 Cal.4th at pp. 926-934, 946-947, 55 Cal.Rptr.2d 724, 920 P.2d 669.)
The circumstances in that case involved a PUC investigation into the health effects of EMF emissions. The PUC had issued an interim opinion and order that summarized what had occurred during the investigation up to that point and the recommendations for further studies. In the interim opinion and order, the PUC recognized the DHS's expertise and concurrent jurisdiction in establishing EMF policy. (Re Potential Health Effects of Electric and Magnetic Fields of Utility Facilities (1993) 52 Cal.P.U.C.2d 1, 8, 14-15, 1993 WL 561942.) We noted that, for the investigation, the PUC had asked DHS to assess the scientific evidence concerning the potential dangers of EMF's and had relied on the DHS witness in developing a policy on the potential health risks of EMF's from utility facilities. (Id. at p. 8, 1993 WL 561942; Covalt, supra, 13 Cal.4th at p. 930, 55 Cal.Rptr.2d 724, 920 P.2d 669.) In determining the need for further research and education programs, the PUC found that the DHS was the “appropriate agency” “to inform [it] as to the type of public health risk, if any, connected to EMF exposure and utility property or operations” and “to define the research needed to determine whether there is a clear cause and effect relationship between EMF from utility property and public health.” (Re Potential Health Effects of Electric and Magnetic Fields of Utility Facilities, supra, 52 Cal.P.U.C.2d at pp. 27-28, 1993 WL 561942.) Accordingly, DHS was designated as the EMF education and research program manager. (Id. at pp. 15, 21, 30, 1993 WL 561942.) Its duties included implementing and coordinating statewide research and education programs, defining the needed research, developing educational information for distribution to utility customers, monitoring the quality of research and education, and providing an annual research report to PUC. (Id. at pp. 16, 22-23, 26, 28-30, 1993 WL 561942; see also Covalt, supra, 13 Cal.4th at pp. 932-933, 55 Cal.Rptr.2d 724, 920 P.2d 669.)
It is true that the PUC's primary involvement with water quality has been in the context of ratemaking, determining which water quality improvements to authorize or mandate and their costs, and the necessary rate increases. However, in making those decisions, the PUC had to consider, as it did in Covalt, the health and safety of the service provided by the regulated utilities. Accordingly, we find that the PUC has exercised and continues to exercise its jurisdiction to regulate drinking water quality.
4. Some of Plaintiffs' Actions Would Interfere with the PUC's General Supervisory and Regulatory Policies, While Others Would Not
Under the third prong of Covalt, superior court lawsuits against public utilities are barred by section 1759 “not only when an award of damages would directly contravene a specific order or decision of the commission, i.e., when it would ‘reverse, correct, or annul’ that order or decision, but also when an award of damages would simply have the effect of undermining a general supervisory or regulatory policy of the commission, i.e., when it would ‘hinder’ or ‘frustrate’ or ‘interfere with’ or ‘obstruct’ that policy.” (Covalt, supra, 13 Cal.4th at p. 918, 55 Cal.Rptr.2d 724, 920 P.2d 669.) “ ‘The PUC has exclusive jurisdiction over the regulation and control of utilities, and once it has assumed jurisdiction, it cannot be hampered, interfered with, or second-guessed by a concurrent superior court action addressing the same issue.’ ” (Id. at p. 918, fn. 20, 55 Cal.Rptr.2d 724, 920 P.2d 669, italics omitted; see, e.g., Waters, supra, 12 Cal.3d at pp. 10-12, 114 Cal.Rptr. 753, 523 P.2d 1161 [damage action for negligence in providing telephone service conflicted with PUC-approved tariff limiting telephone customer to credit allowance for improper service].) In short, an award of damages is barred by section 1759 if it would be contrary to a policy adopted by the PUC and would interfere with its regulation of public utilities. (Waters, supra, 12 Cal.3d at pp. 4, 11, 114 Cal.Rptr. 753, 523 P.2d 1161.)
On the other hand, superior courts are not precluded from acting in aid of, rather than in derogation of, the PUC's jurisdiction. (Vila v. Tahoe Southside Water Utility (1965) 233 Cal.App.2d 469, 43 Cal.Rptr. 654.) Thus, a court has jurisdiction to enforce a water utility's legal obligation to comply with PUC standards and policies and to award damages for violations. (See, e.g., id. at pp. 479-480, 43 Cal.Rptr. 654 [office building owner permitted to seek damages for water utility's failure to provide single water service connection to multiple-tenant building as required by unambiguous tariff approved by the PUC].)
“When the bar raised against a private damages action has been a ruling of the commission on a single matter such as its approval of a tariff or a merger, the courts have tended to hold that the action would not ‘hinder’ a ‘policy’ of the commission within the meaning of Waters and hence may proceed. But when the relief sought would have interfered with a broad and continuing supervisory or regulatory program of the commission, the courts have found such a hindrance and barred the action under section 1759.” (Covalt, supra, 13 Cal.4th at pp. 918-919, 55 Cal.Rptr.2d 724, 920 P.2d 669.)
a. Damages
Plaintiffs alleged water contamination without regard to whether the water met drinking water standards (e.g., injury from “the toxic contamination of drinking water, with chemicals, including, but not limited to,” three chemicals with established maximum contaminant levels). They also alleged water contamination that exceeded and violated federal and state drinking water standards. In essence, plaintiffs challenged both the adequacy of the standards and compliance with those standards.
The first challenge, to the adequacy of the standards, is barred. An award of damages on the theory that the public utilities provided unhealthy water, even if that water actually met DHS and PUC standards, would interfere with a “broad and continuing supervisory or regulatory program” of the PUC. (See Covalt, supra, 13 Cal.4th at pp. 918-919, 55 Cal.Rptr.2d 724, 920 P.2d 669.) In order to perform its regulatory functions, such as ratemaking, the PUC must have certain water quality benchmarks. For example, in determining whether to approve a rate increase, the PUC must consider whether a regulated water utility's existing revenues are adequate to finance any water treatment facility that may be needed. Whether a treatment facility is needed, and, if so, the expense thereof, cannot be determined except with reference to an applicable water quality standard. General order No. 103, promulgated by the PUC in 1956, formally adopted the DHS water quality standards as its own. Thus, the DHS standards serve as those benchmarks. A superior court determination of the inadequacy of a DHS water quality standard applied by the PUC would not only call DHS regulation into question, it would also undermine the propriety of a PUC ratemaking determination. Moreover, the DHS standards have been used by the PUC in its regulatory proceedings for many years as an integral part of its broad and continuing program or policy of regulating water utilities. As part of that regulatory program, the PUC has provided a safe harbor for public utilities if they comply with the DHS standards. An award of damages on the theory that the public utilities provided unhealthy water, even if the water met DHS standards, “would plainly undermine the commission's policy by holding the utility liable for not doing what the commission has repeatedly determined that it and all similarly situated utilities were not required to do.” (Covalt, supra, 13 Cal.4th at p. 950, 55 Cal.Rptr.2d 724, 920 P.2d 669.) Thus, such damage actions are barred.
On the other hand, damage claims based on the theory that the water failed to meet federal and state drinking water standards are not preempted by section 1759. A jury award based on a finding that a public water utility violated DHS standards would not interfere with the PUC regulatory policy requiring water utility compliance with those standards. We recognize that in PUC Decision No. 00-11-014, the final opinion on water quality, the PUC made a retrospective finding that the regulated water utilities investigated, including the regulated defendants in this case, had substantially complied with DHS drinking water standards for the past 25 years. However, that factual finding was not part of an identifiable “broad and continuing supervisory or regulatory program of the commission” (Covalt, supra, 13 Cal.4th at p. 919, 55 Cal.Rptr.2d 724, 920 P.2d 669), related to such routine PUC proceedings as ratemaking (see Citizens Utilities Co. v. Superior Court, supra, 56 Cal.App.3d 399, 128 Cal.Rptr. 582) or approval of water quality treatment facilities. Nor was that finding part of a broad and continuing program to regulate public utility water quality, a point the PUC itself implicitly recognized during its investigation when it stated: “This investigation is an inquiry into the safety of the drinking water supplied by Commission regulated water utilities. This is an information gathering process. This is not a rulemaking proceeding, although the information gathered here may result in our instituting a rulemaking proceeding to develop new operating practices for regulated water utilities to better ensure the health and safety of water service. This is also not an enforcement proceeding, although the information accumulated here regarding the compliance of regulated water utilities with the safe drinking water laws may result in our instituting formal enforcement investigations of individual water utilities where justified.” (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at pp. 48-49, fn. omitted.)
Although a PUC factual finding of past compliance or noncompliance may be part of a future remedial program, a lawsuit for damages based on past violations of water quality standards would not interfere with such a prospective regulatory program. As noted, the PUC can redress violations of the law or its orders by suit (§ 2101), by mandamus or injunction (§§ 2102-2103), by actions to recover penalties (§§ 2104, 2107), and by contempt proceedings (§ 2113), but these remedies are essentially prospective in nature. They are designed to stop the utilities from engaging in current and ongoing violations and do not redress injuries for past wrongs. (See Vila v. Tahoe Southside Water Utility, supra, 233 Cal.App.2d at p. 479, 43 Cal.Rptr. 654 [the PUC has no authority to award damages].) Here, plaintiffs alleged injuries caused by water that failed to meet state and federal drinking water standards “for many years.” Because the PUC cannot provide for such relief for past violations, those damage actions would not interfere with the PUC in implementing its supervisory and regulatory policies to prevent future harm.
The regulated and nonregulated defendants argue that an award of damages against the regulated water utility defendants for providing harmful or unhealthy water, would directly “contravene” a specific order or decision of the PUC, as stated in Covalt. (Covalt, supra, 13 Cal.4th at p. 918, 55 Cal.Rptr.2d 724, 920 P.2d 669.) However, the Covalt language regarding the contravention of an order was simply a reference to the statutory language in subdivision (a) of section 1759 that “No court of this state, except the Supreme Court and the court of appeal ... shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission....” (Covalt, supra, at p. 918, 55 Cal.Rptr.2d 724, 920 P.2d 669.) Although a jury award supported by a finding that a public water utility violated DHS and PUC standards would be contrary to a single PUC decision, it would not hinder or frustrate the PUC's declared supervisory and regulatory policies, for the reasons discussed earlier. Under the provisions of section 1759, it would also not constitute a direct review, reversal, correction, or annulment of the decision itself. Accordingly, such a jury verdict would not be barred by the statute.
b. Injunctive Relief
In addition to alleging damages, the Santamaria plaintiffs asked for injunctive relief for current water quality violations. However, a court injunction issued after a jury finding of DHS standards violations would “interfere with the commission in the performance of its official duties....” (§ 1759.) As part of its water quality investigation, the PUC determined, not only whether the regulated water utilities had complied with drinking water standards for the past 25 years, but also whether they were currently complying with existing water quality regulation. (Cal.P.U.C. Dec. No. 00-11-014, supra, 2000 Cal.P.U.C. Lexis 722 at pp. 5, 105-108.) In PUC Decision No. 00-11-014, the final opinion on water quality, the PUC found that the regulated utility defendants in this case were in compliance with DHS regulations and that “no further inquiry or evidentiary hearings” were required regarding compliance. (Cal.P.U.C. Dec. No. 00-11-014, supra, 2000 Cal.P.U.C. Lexis 722 at p. 6.) Based on that factual finding, the PUC impliedly determined it need not take any remedial action against those regulated utilities. A court injunction, predicated on a contrary finding of utility noncompliance, would clearly conflict with the PUC's decision and interfere with its regulatory functions in determining the need to establish prospective remedial programs. In contrast, even if a jury award of damages on a finding of past violations would conflict with the PUC's factual finding of no past violations, the jurisdictional role of the PUC would not be affected. Under the regulatory framework at issue, here, the PUC's role is to ensure present and future compliance.FN10
FN10. Plaintiffs claim that PUC jurisdiction cannot preempt the private right of actions established by Proposition 65 (the Safe Drinking Water and Toxic Enforcement Act of 1986; Health & Saf.Code, § 25249.5 et seq.) or the state SDWA, and that citizen enforcement is an essential part of the regulatory scheme. However, plaintiffs do not qualify as citizen enforcers of water quality standards under Proposition 65. Private enforcement under Proposition 65 supplements agency enforcement only if the Attorney General or other appropriate prosecutor has failed to act diligently against an alleged violator and notice of the alleged violation has been given to the appropriate prosecutor. (Health & Saf.Code, § 25249.7; see also 42 U.S.C. § 300j-8(b) [similar procedural requirements required for federal citizen enforcement proceedings].) The private enforcer may not seek damages, but may only obtain injunctive relief and statutory penalties. (Health & Saf.Code, § 25249.7, subds. (a), (b), (d).) Apart from failing to meet the procedural prerequisites, plaintiffs' damage claims clearly disqualify them as citizen enforcers. Moreover, preemption of private injunctive relief claims would not affect the enforcement provisions of either the state SDWA or Proposition 65. The state SDWA can be enforced by the DHS (Health & Saf.Code, §§ 116325, 116500, 116660) or the Attorney General (Code Civ. Proc., § 803; Citizens Utilities Co. v. Superior Court, supra, 56 Cal.App.3d at pp. 403-407, 128 Cal.Rptr. 582), but there is no mandate for citizen enforcement actions under the state SDWA. Also, most, if not all, public water utilities are exempted from the coverage of Proposition 65. (Health & Saf.Code, §§ 25249.5, 25249.6, 25249.11, subd. (b), 116275, subd. (h).)
In summary, plaintiffs' damage claims, alleging water contamination irrespective of whether drinking water standards were met, and their injunctive relief claims, are preempted by section 1759.FN11 On the other hand, plaintiffs' damage claims alleging water contamination that violated and exceeded federal and state drinking water standards are authorized under section 2106.FN12
FN11. The regulated water providers argue that, because plaintiffs who intervened in the PUC's water quality investigation failed to appeal the PUC's jurisdictional finding, they are collaterally estopped from challenging its conclusion that it has jurisdiction over the quality of water supplied by the regulated utilities. The PUC found that it possesses authority and has exercised its authority to regulate the quality of the service and the drinking water that the water utilities provide. The PUC expressly refused to decide the third Covalt prong: whether the lawsuits in this case interfered with its water quality investigation. (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at p. 65, fn. 37.) Because we agree that the PUC has jurisdiction and has exercised its jurisdiction over the water quality supplied by the regulated utilities, we need not address the collateral estoppel claim.
FN12. Plaintiffs request that we take judicial notice of what appear to be Internet articles found on a DHS Web site. These articles indicate, as of January 3, 2001, that chromium VI is an unregulated chemical that required monitoring. Plaintiffs seek judicial notice of those articles as proof that their allegations raise no conflict with PUC policy because neither the PUC nor DHS has set water quality standards that govern chromium VI, an “unregulated chemical.” The regulated utilities and the industrial defendants oppose the motion for judicial notice. We deny plaintiffs' request. As stated by the industrial defendants, the articles contain unauthenticated statements with no indication of author, custodian, date of creation, purpose, reliability, or veracity. Also, the articles do not appear to be relevant because the complaint did not specifically allege plaintiffs had been exposed to chromium VI and no evidence regarding this chemical had been presented to the trial court.
B. Section 1759 Does Not Bar the Superior Court Actions Against Defendants Not Regulated by the PUC
Advocating an “issue oriented analysis,” the nonregulated water providers and the industrial defendants claim that, as with the regulated water providers, the superior court actions against them are preempted. Their claim is based on the following arguments: (1) the statutory language of section 1759 does not make any distinction between utility and nonutility parties to a lawsuit; (2) our opinion in Covalt affirms that preemption of court proceedings applies to issues or subject matter before the PUC, not just to actions against regulated companies, if “an award of damages would simply have the effect of undermining a general supervisory or regulatory policy of the commission”; and (3) the issues in the superior court actions and the PUC investigation involve the safety of the very same water supply. Thus, it is argued, a jury award of damages against a nonregulated defendant, based on a determination that the water is unhealthy, would conflict with the PUC's conclusion that the water is safe and would undermine its drinking water policy.
Plaintiffs in the four lawsuits dispute that all of the water alleged to be contaminated is identical to the water provided by the regulated water providers. They claim that the liability of the nonregulated water providers and the industrial defendants are not “derivative” of the water supplied by the regulated water providers. They assert that: (1) although the nonregulated water providers sold wholesale water to some of the regulated water purveyors, they also supplied water to nonregulated water purveyors that may have supplied water to plaintiffs; and (2) the alleged contamination of the groundwater by the industrial defendants also contaminated the groundwater used and supplied by nonregulated water purveyors. Plaintiffs argue, therefore, that the water and the issues are not the same.
In rejecting the preemption argument advanced by the nonregulated water providers and the industrial defendants, the Court of Appeal below stated: “Section 1759 provides that no trial level court may ‘review, reverse, correct, or annul’ or ‘enjoin, restrain, or interfere with’ the PUC in its performance of its duties. By no stretch of language or logic does this mean that trial courts may not decide issues between parties not subject to PUC regulation simply because the same or similar issues are pending before the PUC or because the PUC regulates the same subject matter in its supervision over public utilities.” (Fn. omitted.)
We agree. First, although section 1759 does not expressly restrict preemption to claims involving regulated water utilities, it cannot be construed in isolation; rather, it must be viewed in context with “ ‘ “ the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.” ’ ” (People v. Ledesma (1997) 16 Cal.4th 90, 95, 65 Cal.Rptr.2d 610, 939 P.2d 1310; County of Sacramento v. Workers' Comp. Appeals Bd. (1999) 69 Cal.App.4th 726, 733, 81 Cal.Rptr.2d 780.) The California Constitution authorizes the PUC to establish rules only for utilities. (Cal. Const., art. XII, § 6.) The powers granted to the PUC by the Legislature must be “cognate and germane to the regulation of public utilities....” (Morel v. Railroad Commission (1938) 11 Cal.2d 488, 492, 81 P.2d 144.) The Legislature specified the PUC's regulatory powers over public utilities in the Public Utilities Code, of which section 1759 is a part. Under section 1759, a superior court cannot “enjoin, restrain, or interfere with the [PUC] in the performance of its official duties....” (Italics added.) Thus, when read in context with the entire regulatory scheme, section 1759 must be read to bar superior court jurisdiction that interferes with the PUC's performance of its regulatory duties, duties which by constitutional mandate apply only to regulated utilities. Although a superior court jury may return findings on water safety issues that would conflict with those decided by the PUC on the same or similar issues, neither the nonregulated water providers nor the industrial defendants adequately explain how such conflicting findings, relating to them, would interfere with the PUC's official regulatory duties.
Second, the nonregulated defendants fail to cite case law to support their view that the jurisdictional bar of section 1759 applies to nonregulated parties. Instead, they rely on isolated statements in cases referring to the preemptive effect of issues or cases pending before the PUC. They argue that those cases do not expressly confine their preemption language to actions against regulated parties. (See, e.g., Covalt, supra, 13 Cal.4th at p. 944, 55 Cal.Rptr.2d 724, 920 P.2d 669[“[t]he question is therefore whether section 1759 applies to this case” (italics added)]; id. at p. 918, fn. 20, 55 Cal.Rptr.2d 724, 920 P.2d 669 [“ ‘once [the PUC] has assumed jurisdiction, it cannot be hampered, interfered with, or second-guessed by a concurrent superior court action addressing the same issue’ ” (italics added, original italics omitted)]; Barnett v. Delta Lines, Inc. (1982) 137 Cal.App.3d 674, 681, 187 Cal.Rptr. 219 [same].) Because those cases involved only regulated utilities, the references to the preemptive effect of “issues” or “cases” pending before the PUC must be read in context with the facts of the case, i.e., as barring only actions brought in trial courts against regulated utilities. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2, 39 Cal.Rptr. 377, 393 P.2d 689 [“Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered”].)
Indeed, in Covalt, supra, 13 Cal.4th 893, 55 Cal.Rptr.2d 724, 920 P.2d 669, and Waters, supra, 12 Cal.3d 1, 114 Cal.Rptr. 753, 523 P.2d 1161, we sought to reconcile sections 1759 and 2106. Section 2106, by its terms, applies only to a “public utility” and does not authorize lawsuits against nonregulated entioties. Therefore, the rationale expressed in both cases applies only to bar superior court jurisdiction over lawsuits otherwise authorized by section 2106, i.e., cases against regulated utilities.
Third, the regulatory scheme contained in the Public Utilities Code is rooted in the recognition that business enterprises “affected with a public interest” are subject to government regulation under the state's police power. (See Munn v. Illinois (1876) 94 U.S. (4 Otto) 113, 125-130, 24 L.Ed. 77; Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 476, 156 Cal.Rptr. 14, 595 P.2d 592.) Endowed by the state with a legally enforceable monopoly and authorized by the state to charge rates that guarantee it a reasonable rate of return (Gay Law Students Assn. v. Pacific Tel. & Tel. Co., supra, 24 Cal.3d 458, 476, 156 Cal.Rptr. 14, 595 P.2d 592), a public utility, in turn, must comply with the comprehensive regulation of its rates, services, and facilities as specified in the Public Utilities Code. (See Pacific Gas & Elec. v. Energy Resources Comm'n (1983) 461 U.S. 190, 205, 103 S.Ct. 1713, 75 L.Ed.2d 752; Sidak & Spulber, Deregulatory Takings and Breach of the Regulatory Contract (1996) 71 N.Y.U. L.Rev. 851, 907.) Thus, “ ‘a public utility, being strictly regulated in all operations with considerable curtailment of its rights and privileges, shall likewise be regulated and limited as to its liabilities. In consideration of its being peculiarly the subject of state control, “its liability is and should be defined and limited.” [Citation.]’ ” (Waters, supra, 12 Cal.3d at p. 7, 114 Cal.Rptr. 753, 523 P.2d 1161; see also Los Angeles Cellular Telephone Co. v. Superior Court (1998) 65 Cal.App.4th 1013, 1018, 76 Cal.Rptr.2d 894 [“As our courts have long recognized, it is an equitable trade-off-the power to regulate rates and to set them below the amount an unregulated provider might otherwise charge requires a concomitant limitation on liability”].)
Finally, unlike the regulated water providers, the PUC has no jurisdiction to hear complaints or claims against any nonregulated entities. If claims against nonregulated entities were preempted by section 1759, they could not be heard in any forum.
The Court of Appeal below correctly noted that, “the nonregulated defendants do not invite us to find that the PUC has de facto authority to regulate their conduct. Some seem to be claiming only a tangential benefit from PUC regulation-a stay or preemption of actions against them-unencumbered by the burdens of PUC regulation.” We conclude that section 1759 does not preempt these lawsuits in superior court against the nonregulated water providers and the industrial defendants.FN13
FN13. The nonregulated water providers and the industrial defendants argue that, in the alternative, the Court of Appeal should have ordered the trial courts to stay the actions under the doctrine of primary jurisdiction, pending resolution of the PUC's water quality investigation. Because the PUC issued its final opinion in that investigation after the filing of the briefs, we need not address that claim.
In the final opinion on water quality, the PUC noticed its intention to initiate a future limited investigation into whether utilities complied with the PUC standards prior to the establishment of DHS standards. (Cal.P.U.C. Dec. No. 00-11-014, supra, 2000 Cal.P.U.C. Lexis 722 at pp. 16-17.) In their supplemental briefs, the industrial defendants urge us to order a stay as to claims for damages caused by water provided before the adoption of DHS standards, pending completion of the future PUC investigation. We decline to do so for obvious reasons. That claim was never made to the superior court or Court of Appeal and can be decided more appropriately by the superior court.
CONCLUSION
In the four actions, the damage claims alleging violations of federal and state drinking water standards against the regulated utilities are not preempted. Thus, we reverse the judgment of the Court of Appeal insofar as it found preemption as to those claims. Regarding the remaining claims against the regulated water utilities, we affirm the judgment of the Court of Appeal. We further affirm the judgment of the Court of Appeal insofar as it held that the causes of action against the nonregulated water providers and industrial defendants are not preempted. We remand the case to that court for further proceedings consistent with this opinion.
WE CONCUR: GEORGE, C.J., KENNARD, BAXTER, BROWN and MORENO, JJ.
Concurring Opinion by KLINE, J.FN**
FN** Presiding Justice of the Court of Appeal, First Appellate District, Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I concur and write separately to explain why I believe regulation of water quality is among the “official duties” of the Public Utilities Commission (PUC or commission). (Pub.Util.Code, § 1759.) .FN1 Some of my reasons go beyond those described by the majority and relate more specifically to the commission's authority to promulgate water quality standards stricter than those of the California Department of Health Services (DHS), an issue central to the jurisdictional dispute.
FN1. All statutory references are to the Public Utilities Code unless otherwise indicated.
Plaintiffs in these actions maintain that the 1976 amendment to section 770-which eliminated the prohibition on the PUC applying its water quality standards to regulated utilities and provided instead that any such standards it may apply shall not be “inconsistent” with DHS standards-means that PUC water quality standards may not differ in any way from those promulgated by DHS, which would bar the commission from imposing standards higher than those of DHS. Plaintiffs' construction of the amendment renders it meaningless. If, as plaintiffs argue, the amendment means the PUC cannot apply its own standards, but only those of DHS, the amendment would have no different effect than the language it replaced, and the Legislature would have performed an idle act. Given the context in which the Legislature acted, the only sensible interpretation is that “inconsistent” means less rigorous, so that the purpose of the amendment to section 770 is analogous to that of the federal Safe Drinking Water Act (42 U.S.C. § 300f et seq.) (federal SDWA), which prohibits the states from enacting water quality standards less stringent than those established by the federal government, but permits them to impose more stringent requirements. (42 U.S.C. § 300g.)
Because, as the majority says, the Legislature established only that DHS water quality standards are “the minimum standards for the PUC to use in performing its regulatory function” (maj. opn., ante, at p. 887, 38 P.3d at p. 1109, italics added), the commission is free to subject regulated water utilities to stricter standards than are imposed by DHS.
The title of the PUC investigation in this case .FN2 reflects the commission's concern that the DHS standards it now applies may not adequately protect the public; and the PUC made clear during the proceedings that it was considering the promulgation of higher standards. As the commission stated, “we do not intend to reduce MCLs [maximum contaminant levels], Action Levels or similar standards which are terms of art in the lexicon of [Safe Drinking Water Act] law and regulation. Drinking water standards, including established MCLs, are minimum water quality requirements and we cannot and shall not tamper with those requirements. We do not intend to duplicate the processes employed by DHS and [the federal Environmental Protection Agency] to develop those standards. We do intend to employ the knowledge of these agencies as we pursue this investigation. The evidence adduced in this proceeding may support the development of additional operating practices for regulated utilities. If so, we would expect that such new rules either will fill an identifiable void, if any there is, in the DHS regulatory scheme or will be practices stricter than those of DHS and/or they will be practices particularly suited to the regulation of investor-owned water utilities. In any event, before we can determine what actions, if any, might better promote safe drinking water service by regulated water utilities, we must have a clear understanding of the safety status of existing regulation. Therefore, we need to receive evidence on the questions posed in the OII [Order Instituting Investigation].” FN3 (Cal.P.U.C. Interim Opinion Denying Motions Challenging Jurisdiction to Conduct Investigation 09-03-013 (June 10, 1999) Dec. No. 99-06-054 [1999 Cal. P.U.C. Lexis 312 at pp. 73-74], italics added. (Interim PUC Opinion).) As the majority has noted, in its final opinion on water quality the PUC ordered a subsequent investigation and/or rulemaking proceeding to consider, among other things, whether DHS's “ action levels,” which are neither mandatory nor enforceable, should be mandatory for regulated utilities. (Maj. opn. ante, at p. 887, fn. 9, 38 P.3d at p. 1109, fn. 9.) Such a PUC rule would impose water quality standards higher than those imposed by DHS.
FN2. “Investigation on the Commission's own motion into whether existing standards and policies of the Commission regarding drinking water quality adequately protect the public health and safety with respect to contaminants such as Volatile Organic Compounds, Perchlorate, MTBEs, and whether those standards and policies are being uniformly complied with by Commission regulated utilities.” (Cal. P.U.C. Order Instituting Investigation No. 98-03-013 (March 12, 1998) [1998 Cal. P.U.C. Lexis 73].)
FN3. These statements appear to represent a substantial policy change for the PUC, as the commission has heretofore consistently and rather summarily rebuffed consumer complaints that the DHS standards it applies are inadequate. For example when, in 1966, the PUC was asked to order “optimum” fluoridation of drinking water, the commission held: “With respect to the purity and safety of drinking water, the Commission will not question the findings and recommendations of the California Department of Health, which is charged with such responsibility.” (City of San Jose v. San Jose Water District (1966) 66 Cal.P.U.C. 694, 698.) Similarly, in 1972, the PUC again rejected complaints concerning the quality of a purveyor's water: “The State Board of Public Health [DHS] has the authority ... to suspend or revoke a utility's water permit at any time if it determines that the water is or may become unpure or unwholesome. Under [the Health and Safety Code], and in accordance with General Order 103, it is not appropriate for the Commission to determine this question. Petitioners should direct their allegations on this question to the [DHS].” (Washington Water & Light Co. (1972) 73 Cal.P.U.C. 284, 303; see also Pool v. Mokelumne River Power & Water Co. (1918) 15 C.R.C. 38, 39 [“[t]he question of the healthful quality of the water is one to be passed on by the State Board of Health.”].)
The substance of the PUC proceedings demonstrates that the commission is discharging its responsibility under section 761 to inquire whether the “practices” of or “service[s]” provided by defendant regulated water utilities are “unsafe,” and, if so, to fix the problem by “prescrib[ing] rules for the performance of any service or the furnishing of any commodity ... supplied by any public utility.” In short, the PUC inquiry into the adequacy of DHS standards, and any higher standards it may impose, are or would be in the performance of its “official duties” (§ 1759) to protect the public health and safety.
Significantly, DHS, which actively participated in the commission proceedings, never suggested that the PUC's expressed interest in whether it needed to exercise its authority to subject regulated water utilities to water quality standards higher than those of DHS would, if acted upon, offend the federal SDWA or the state Safe Drinking Water Act (Health & Saf.Code, § 116275 et seq.) (state SDWA), and the DHS expressed no other objection to PUC assertion of authority to impose water quality standards higher than its own. On the contrary, DHS explained why it might be appropriate for the PUC to subject the almost 200 water utilities it regulates to higher standards than does DHS. According to DHS, “ ‘the increase in population growth and demand for drinking water throughout the state has diminished the options utilities have to reserve and select high quality sources of drinking water. The impact of groundwater contamination from industrial and agricultural practices has been significant in some areas of the state. Public water systems are no longer able to forego the use of contaminated drinking water sources, including those associated with Superfund sites, since that water may be needed to meet increased demand.’ ” (Interim PUC Opinion, supra, 199 Cal. P.U.C. Lexis 312 at p. 76.) Moreover, as DHS specifically acknowledged, “[t]here are some contaminants that were known to exist in drinking water sources but were never regulated.” (Ibid., italics added.)
DHS's conduct in the PUC proceeding demonstrates that it does not believe the state SDWA (or the memorandum of understanding DHS originally entered into with the PUC in 1987) would prevent the PUC from imposing water quality standards higher than its own, or that such standards, including those pertaining to contaminants for which there now are no enforceable DHS standards, would be “inconsistent” with DHS standards. As the primary agency charged with implementing the state SDWA, DHS's view is entitled to judicial respect. The questions whether an administrative agency properly applies legislative standards and acts within authority conferred by the Legislature are, of course, ultimately decided by the courts (Quackenbush v. Mission Ins. Co. (1996) 46 Cal.App.4th 458, 466, 54 Cal.Rptr.2d 112), but an administrative agency's “interpretation of a statute it routinely enforces is entitled to great weight and will be accepted unless its application of legislative intent is clearly unauthorized or erroneous.” (American Federation of Labor v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1027, 56 Cal.Rptr.2d 109, 920 P.2d 1314, citing Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 109, 172 Cal.Rptr. 194, 624 P.2d 244.)
Neither does PUC's General Order 103 bar the PUC from imposing higher water quality standards in the future. While at present this order only requires compliance with federal and state water quality standards, the phrase “except as otherwise ordered by the Commission,” must be interpreted as reserving the right to impose the higher standards the commission is allowed to impose under section 770. In any event, as the PUC had the authority to adopt General Order 103, so too does it retain power to repeal or amend it so that it is consistent with the imposition of PUC water quality standards higher than those promulgated by DHS.
For the foregoing reasons, as well as those set forth by Justice Chin for the majority, I agree that the PUC has independent regulatory authority to promulgate water quality standards applicable to the water utilities it regulates and that such standards may be the same as or stricter (but not less strict) than those promulgated by DHS under the state SDWA. There may be circumstances in which a superior court award of damages for injuries sustained by the provision of water standards or other rules applied by the PUC might interfere with the PUC's performance of its “official duties,” and therefore violate section 1759, FN4 but, as the majority has explained, they are not presented by this case.
FN4. For example, under section 735 the PUC has authority to receive and rule on claims for damages resulting from the violation of any of the provisions of sections 494 (relating to common carrier rates and fares) or 532 (relating to the rates, tolls, rentals and other charges imposed by public utilities), even though a suit seeking such damages could alternatively be instituted “in any court of competent jurisdiction.” Section 1759 would clearly bar a superior court from entertaining a claim for damages for violation of section 494 or section 532 that had previously been submitted to and rejected by the commission.

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City Commission of City of Fort Pierce v. State ex rel. Altenhoff

Florida, Abuse of Municipal Authority, Unlicensed Practice of Medicine/Compulsory Medication, Due Process Violations, State police power

Plaintiff

City Commission of City of Fort Pierce

Defendant

State ex rel. Altenhoff

State

Florida

Other Parties

-

Case Tags

- Abuse of Municipal Authority

- Unlicensed Practice of Medicine/Compulsory Medication

- Due Process Violations

- State police power

Citation

143 So.2d 879 (Fla. Dist. Ct. App. 1962)

Year

1962-00-00T00:00:00

Court Name

District Court of Appeals of Florida, Second District

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Allen

Opinion Text

ALLEN, Acting Chief Judge.
Injunctive relief was sought below by the relator, John Altenhoff, appellee in this court, to restrain the City Commission of the City of Fort Pierce, Florida, respondent below, appellant here, from implementing a municipal ordinance directing the City Manager of the City of Fort Pierce to provide for the introduction of fluoride into the water supply of said city as directed by the State Board of Health. The complaint alleged that, under the ordinance, respondent ‘determined to cause the public water supply produced by the said City and furnished to the relator and the citizens of said City and others, to be impregnated with sodium fluoride in the ratio of one part sodium fluorido to one million parts of water, or more, the same being the type of fluoride and the ratio of impregnation directed by the said State Board of Health and referred to in said ordinance.’
The complaint further alleged that the above described fluoridation of the water supply constitutes a nuisance under § 823.01, F.S.A.; that it is injurious to the health of those citizens supplied by the water system, particularly relator and his family; that the ingestion of fluoride from the water supply is cumulative and productive of fluoride poisoning and intoxication which are fatal to persons afficted with diabetes, nephritis or glandular diseases; and that sodium fluoride is an insidious poison generally injurious to the health of the citizenry. It was also alleged that fluoridation of the water system would cause irreparable injury to those members of the public dependent upon it for water, for which there would be no adequate remedy at law.
It was further alleged that fluoridation of the water system, amounting to mass medication, violates the rights of the citizens guaranteed by §§ 1 and 5 of the Declaration of Rights, F.S.A.; that the ordinance (# E44) providing for fluoridation is void as an unlawful delegation of the authority delegated to the City by the Legislature in that it vests in the City Manager and/or the State Board of Health an arbitrary discretion; that the ordinance exceeds the powers granted to the City in its charter, Chap. 57-1331, Laws of Florida, 1957 (Spec.Acts), in that fluoridation is not purification but pollution of the water supply; that there has been no lawful appropriation of funds to purchase the equipment provided for in the ordinance; and that the ordinance ‘is violative of the constitutional guarantee against Class Legislation in that its proponents only claim it is beneficial to children of the age group of one to fourteen years; yet the mass medication must be consumed by the remaining 86% of the population regardless of the detriment to this large percent of the population of said City.’
The complaint then prayed for both a temporary and permanent injunction restraining the respondent from fluoridating the water supply and purchasing any equipment designed to accomplish that end.
Respondent's motion to dismiss was denied, whereupon an answer was filed denying the material allegations of the complaint and averring that ‘the preservation of health and safety of the people in a community is of prime importance in the exercise of the police power of said City, and that said ordinance E-44 is designed to promote the health and welfare of the citizens * * * dependent upon the water supply furnished to them by the said City.’
Paragraph 8 of the answer was stricken on relator's motion, but with leave to amend, and as amended reads in part as follows:
‘1.-Further answering said Complaint this Respondent avers that public hearings were had before the Commission of the City of Fort Pierce, Florida on March 30, 1959 and April 2, 1959 and at said hearings the opponents and proponents to the fluoridation of the public water supply of the City of Fort Pierce presented evidence and arguments in support of their position; excerpts from the minutes of the said meetings of the City Commission of the City of Fort Pierce are hereto attached and by reference made a part hereof; that subsequent to said hearings, that is, on December 7, 1959, Ordinance E-44 was duly adopted by the City Commission of the City of Fort Pierce.
‘2.-That the St. Lucie County Health Department being an agency of the State Board of Health, is employed by the Respondent as its health inspectors and officers; that the St. Lucie County Health Department is under the direction and supervision of Dr. Neill Miller, a deputy State Board of Health Officer; that the Florida State Board of Health has broad concern for all conditions which affect the health of the citizens of the State of Florida and has formulated general policies affecting the public health of the State of Florida; that under the general direction of the State Board of Health the State Health Officer is required to enforce rules and regulations relating to the general health of the people of the State of Florida and to cooperate with other appropriate state, county, municipal and private boards, departments or organizations for the improvement and preservation of the public health in supervising services which affect the health of the community as a whole. That the Florida State Board of Health, after a public hearing held on August 20, 1955 to allow both the opponents and proponents to present any new-or to reevaluate any old-scientific evidence which might have a bearing on the desirability, effectiveness or safety of the fluoridation of the public water supplies, determined, authorized and recommended that the fluoridation of the public water supply was an urgent need for the improvement of dental health and for the control of dental caries; that this Respondent has complied with all of the policies and regulations of the State Board of Health for the fluoridation of its public water supply; that the fluoride content to be applied to its public water supply will not exceed 1.1 parts per million gallons of water which said fluoride will be impregnated into the public water supply under the supervision and direction of the State Board of Health through employees and servants of the Respondent.’
Thereafter, the parties jointly filed a stipulated statement of the facts which the lower court approved in its pretrial order and which he ruled would control the subsequent course of the cause unless modified during trial to prevent manifest injustice. Said fact statement reads:
‘It is stipulated and agreed by and between counsel for the respective parties to the following statement of facts to be submitted to the Court for its consideration in the determination of the above entitled cause, to-wit:
‘1. That the form of fluoride intended to be used by the City in its fluoridation of the water supply is Sodium Fluoride or some other type of fluoride chemical preparation approved by the State Board of Health, hereinafter referred to as fluoride.
‘2. That Fluoride is not a purifying agent when put in a water supply or thereafter.
‘3. That the sole purpose of fluoridation of the City's water supply is to reduce the number of caries, or cavities, in the teeth of individuals from birth to age seventeen, with a residual benefit to those persons throughout life, by drinking the fluoridated water.
‘4. The percentage of distribution of fluoride in the City's water supply in different parts of the City can be checked, either in the lines or at point of consumer use or the entire system at any time so required.
‘5. That the Florida State Board of Health is in no sense under the control of or subject to the orders of the City Commission of the City of Fort Pierce but that the City of Fort Pierce is subject in some respects to orders by the State Board of Health in the operation of its water supply system.
‘6. That the incumbent City of Fort Pierce City Manager is not a physician, chemist or pharmacist.
‘7. That there has been a determination of the percentage of fluoride in the present water supply and the information is available at the Bureau of Dental Health and the Bureau of Sanitary Engineering, Florida State Board of Health, Jacksonville, Florida.
‘8. That the amount of water used for drinking purposes from the City's water supply is very low and not more than two percent.
‘9. That the cost of equipment necessary for fluoridation of the City's water supply will be approximately $9,000.00 and that the annual cost of the Fluoride to be placed in the water supply will be in excess of $3,000.00; that the City's water supply is between two and four million gallons per day.’
Each party filed a motion for summary decree. In opposition to the motion filed by respondent, the attorney for relator filed the following affidavit:
‘Comes now E. O. DENISON, as Attorney for the Relator herein, JOHN ALTENHOFF, and makes this affidavit for and on behalf of said Relator and Plaintiff, and after being duly sworn, by me, the undersigned authority, deposes and says:
‘1. That the allegations of Paragraph 7 of the Respondents' Motion for Summary Decree is denied.
‘2. That the fluoridation of the water supply of the City of Fort Pierce is not for the general welfare and health of the community, but on the contrary, is for the purpose of retarding the prevalence of dental caries in the teeth of minors up to and including the age of fourteen years who imbibe the City's water supply if and after the same has been flurinated (sic), and that the percentage of the population of said City designed to be benefitted is but a small portion, thereof, i. e. less than 20%, and is not for the benefit of the general welfare and/or health of the people of the City of Fort Pierce.
‘3. That the fluoridation of the City's water supply is an illegal and ultravires exercise of the powers delegated to the City of Fort Pierce by the Legislature of the State of Florida under its police powers, or otherwise.
‘4. Depondent further denies that the purported official policies of the State Board of Health attached to and by reference made a part of Respondents' Motion, are not the current policies of said State Board of Health with reference to the fluoridation of public water supplies, but on the contrary, are antiquated and obsolete and not in conformity with the current medical dental and surgical opinion concerning the harm and benefit derived and/or suffered by the public as a result of the fluoridation of a public water supply in the proportion specified in said ‘policy’ i. e., one part per million Sodium Fluoride to water, and that material issues in this cause are raised an must be determined on the points herein stated.'
The lower court granted relator's motion and entered a summary final decree granting the injunctive relief sought. Significant protions of the chancellor's opinion incorporated therein are set forth as follows:
‘* * * Each side has filed a Motion for Summary Decree and each claims the right to a Summary Decree as a matter of law only, based solely on the Complaint, Answer as amended, and Stipulation, so that a granting of one motion necessarily denies the other-without consideration of whether the other is well founded from procedural points of view.’ (Emphasis ours.)
‘The Court has heard lengthy argument by able counsel for each side, and also by counsel for the State Board of Health who appeared, with consent of the Court, as amicus curiae. Voluminous authority and a multitude of citations have been submitted.
‘Because of the grave importance of this litigation to the inhabitants of the City and also to those charged with administrative affairs of the Municipal Corporation, the Court feels it is within the bounds of propriety to set forth some observations.
‘This case is one of original impression in the State of Florida. Only a few of the sister States have passed on the question of fluoridation and they have only begun to scratch the surface in answering all the questions posed by the subject, and none is of any great benefit in answering the immediate problem before this Court. The immediate problem before this Court is only indirectly connected with the pros and cons of fluoridating public supplies of water and counsel have kindly furnished for the edification of the Court a mountain of authentic printed material, pro and con, on the subject of fluoridation. A perusal thereof shows it to be very conflicting and leads to two conclusions; first, that any trial on the merits of fluoridation brings forth greatly conflicting evidence and, second, that medical science must be relied upon to find the ultimate soultion.
‘As to the advisability of fluoridating water, it is of no consequence or improtance whether the Court personally approves or disapproves of fluoridation. The only question to be determined here is of a purely legal and constitutional origin and the question will so be dealt with, and only from that standpoint. The Supreme Court of the State of Washington, ([ Kaul v. City of Chehalis, 45 Wash.2d 616,] 277 P.2d 352) in discussing the decision of the trial court in the Shreveport, Louisiana fluoridation case ([ Chapman et al. v. City of Shreveport, 225 La. 859] 74 So.2d 142) made this rather unusual statement:
‘The trial Judge subtly adopts the arguments of the scientific opponents of fluoridation. Although the relevancy of that question is denied on one hand, it is nurtured on the other.’
‘Any ‘nurturing’ on the part of this Court in behalf of either proponents or opponents of fluoridation is purely accidental and committed unconsciously.
‘The proposition presented by Relator's Motion for Summary Judgment is:
‘Has the State of Florida, by existing law, granted power to the City of Fort Pierce to fluordate its public water supply?’
‘The question is both serious and troublesome.
‘The Court is not here confronted with the question of whether the State can authorize the fluoridation of the public water supply, but whether the State has, expressly or by implication, granted this power to the City of Fort Pierce. This Court is not called upon, nor can it, in answering this question, pass on the desirability and justification of fluoridating the public water supply.
‘The legislature of the State of Florida has enacted no statute expressly authorizing fluoridation. Therefore, the power of the City to fluoridate must be implied.
‘The Constitution of Florida by Article VIII, Section 8, provides:
“The legislature shall have power to establish and to abolish, municipalities to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time * * *.' (Emphasis supplied).
‘it is a recognized and established principle of law that municipalities are purely creatures of the legislative branch of the Government. The following from 23 Florida Jurisprudence under the general heading Municipal Corporations is indicative of this principle:
‘Page 23. ‘In exercising certain public functions at the local level, a municipality is to that extent exercising State functions for the benefit of the public in the local community. A municipality derives all of its powers, duties and its very existence from the State, acting through its legislative body.’
‘Page 146. ‘The immediate source of a municipal corporation's police power is the special act of the legislature establishing its charter, the general laws specifying the powers and authority of municipalities, and the implied grant of power in its charter and the general laws.
“The principe that grants of power are to be strictly construed is applicable to grants of police power. Consequently it is a well settled principle that any fair, reasonable doubt concerning the existence of police power will be resolved by Courts against the municipal corporation and the power will be denied.
“The police power of municipalities exists solely by virtue of such (statutory and constitutional) grant.
‘Page 112. ‘So far as their (ordinances) constitutional validity is concerned, they are considered in the same light as laws of the State and must conform to the Supreme organic law in every respect.’
‘The Town of Fort Pierce was originally incorporated under the general law on February 2, 1901. This incorporation was validated by the legislature by Chapter 5100, Acts of 1901, and in later years the City has been reincorporated, or received a new Charter, at various times and the present charter, Chapter 57-1331 Acts of 1957, was adopted at a referendum election held December 3, 1957. Amendments enacted by the 1959 session are of no concern here.
“The Constitution empowers the legislature to create a municipality by special act. The municipality is powerless to act unless such a special act gives it authority to do so. The paramount law of a municipality so created is the municipal charter. It is the municipality's constitution enumerating and giving it all the powers it possesses, unless other statutes are applicable to it.' 23 Fla.Jur. 41.
‘Section 142 of the Charter provides that the City is authorized to procure and distribute;
“* * * An abundant supply of good wholesome water * * *.'
‘Also in section 14(34-a) under the heading ‘Police Powers' the City if granted the power and authority ‘as provided by law’ (emphasis added):
“To exercise all of the powers of local self-government and to do whatever may be deemed necessary or proper for the safety, health, convenience or general welfare of the inhabitants of the City; to exercise full police powers to do and perform all acts and things permitted by the laws of the State of Florida, and comprehended as duties in the performance of anything recognized as a ‘municipal purpose’, whether now existing and recognized, or hereby recognized as a municipal purpose by statute, law or court decision.'
‘Therein, within the bounds of the last three above quoted statements and within the further bounds of any and all reasonable, rational, honest and legal implications which may be drawn therefrom, must be found the answer.
“The legislative intent is the polar star by which the Courts must be guided since it is the essence and vital force behind the law and the ruls of statutory construction are the means whereby the Courts seek to determine this intent when it is not clear. 30 Fla.Jur. 173.
“It is not a question of supplying or deleting words or distorting and analyzing phrases to see what the legislature had in mind. The problem is to arrive at the legislative intent from the content of the Act as is. Overman v. State Board of Control, et al., Fla., 62 So.2d 696.'
‘Persuasive authority from other jurisdictions has been examined without conclusive result. As stated above, few of the sister States have passed on the question of fluoridation, and in most cases it has been upheld for a variety of reasons. However, in none of the cases, or combinations thereof, can an answer be found to the question before this Court, since a careful examination of each will reveal a different factual and legal situation when analyzed and compared with the problem presented here.
‘No authority has been cited and the Court has found none which gives the State Board of Health independenty authority to fluoridate the water supply of the City; and it should be remarked in passing that the State Board of Health claims none.
‘The Court takes judicial notice that a public water supply is not fluoridated in order to filter the water, or purify it, or to make it more abundant, potable or wholesome.
‘The Court conceives fluoridation of the public water supply to be for the direct benefit of a limited percentage of the population; and in this respect fluoridation is unlike emergency health measures such as compulsory vaccination or compulsory detention and enfodrced treatment for veneral disease, both of which are not only for the benefit of the individual but the general populace as well. An individual with dental caries is not directly, or indirectly, a menace or hazard to the community or to other individuals. Dental caries is neither infectious or contagious and when the water is fluoridated the individual alone receives the direct benefit.
‘It is true that any direct benefit to one is indirectly a benefit to all; but how far the indirect benefit reaches, or to what extent it is limited, is not to be decided here.
‘Any scheme, plan or legislation to preserve and protect health, whether on a mass basis or not, is both laudable and desirable-and in modern society needed, if for no other reason than to reduce the cost of medical service-provided there is no violation of organic law.
‘But to the Court it is no more reasonable to imply, from the passages quoted above, a grant of power to the City to fluoridate its water supply than it would be to imply, from these same passages, a grant of power to the City to require all children between the ages of six to sixteen to report periodically to a public health agency for individual fluoride treatment. Admittedly, the one situation is both ridiculous and unreasonable; but unreasonable also is the other, when examined under the light of organic law.
‘Speculation, guesswork and conjecture have no part in statutory interpretation, and fair, reasonable doubts concerning the existence of police power must always be resolved against a municipality.
‘The City Commissioners of the City of Fort Pierce, Florida, and their successors in office, are hereby permanently enjoined from taking any further action or doing any other thing wherein or whereby said Ordinance E-44, or amendments thereto or reenactments thereof, may or might be effectuated; unless and until duly enacted power and authority so to do is granted by the Legislature of the State of Florida.’
In ruling on and granting the relator's motion for summary decree, the lower court determined that the question before it was ‘Has the State of Florida, by existing law, granted power to the City of Fort Pierce to fluoridate its water supply?’ This then is the only question before this court in this appeal, although the parties have attempted to raise other issues. At the outset, it should be noted that the legislature has not in so many words, either by charter provision or otherwise, specifically authorized the City to fluoridate its water supply. Therefore, if the City does so have the power to fluoridate, it has it by virtue of other, more broad provisions of authority expressly conferred upon it.
The present charter of the City of Fort Pierce appears as Chap. 57-1331, Laws of Florida, 1957 (Spec. Acts). Article II of the charter relates to the powers conferred upon the City by the legislature. See also Article X, Utilities, paragraphs 142 and 149. Paragraph 32, § 14 of Article II authorizes the City to maintain an adequate water supply and to keep it free from pollution. It deals primarily, however, with the establishment of the water system's physical plant and the problem of water purification. The language in said paragraph 32 does not persuade either pro or con on the question of the City's power to fluoridate. Such power to fluoridate, if it is to be inferred from any of the provisions in the charter as a logical implementation of broader powers expressly granted, must be inferred from paragraph 34, ‘Police powers,’ and paragraph 36, ‘Enumerated powers not exclusive,’ appearing in Article II.
Paragraph 34 reads in part as follows:
‘(a) To exercise all of the powers of local self-government and to do whatever may be deemed necessary or proper for the safety, health, convenience or general welfare of the inhabitants of the city; to exercise full police powers to do and perform all acts and things permitted by the laws of the State of Florida, and comprehended as duties in the performance of anything recognized as a ‘municipal purpose’, whether now existing and recognized, or hereby recognized as a municipal purpose by statute, law or court decision.'
Paragraph 36 reads:
‘36. Enumerated powers not exclusive. The special and general powers granted by this charter shall be construed as objects, purposes and powers of the city and shall be construed to be in furtherance and not in limitation of general powers conferred by the laws of the state upon cities and towns; and it is specifically provided that no limitation, expression or declaration of specific powers and purposes enumerated in this charter shall be deemed to limit or restrict or to be exclusive. Whenever this charter shall grant or confer upon the city the rights, powers and privileges now belonging to or conferred upon cities and towns by the general laws of the state, such rights, powers, and privileges enjoyed by cities and towns under the general laws of this state and hereby granted and conferred upon the city, shall extend but no restrict or infringe upon or limit the rights, privileges and powers conferred by this Charter. The city, in receiving and exercising the rights, privileges and powers conferred upon cities and towns under authority of either special or general laws of the state, shall not thus be subjecting itself to any other duties, limitations or obligations naturally a part of such rights, privileges and powers, except those herein specifically provided; and finally in addition to any enumerated particular powers or adoption of powers of other cities and towns in the state granted either by general or special laws of the state, the city shall have and exercise all other powers which under the state constitution it would be competent for the legislature to enumerate specifically.’ (Emphasis added.)
Clearly, under the above two charter provisions, the City has been given a broad power to legislate by municipal ordinance for the general welfare and health of the populace. The closest to an express provision authorizing fluoridation, of course, is subsection 34 permitting ‘municipal legislation’ under the police power for the health and general welfare of the inhabitants. No one could seriously question that the subject of fluoridating a water supply is concerned with health. The contention has been made in this court that the power to legislate for the health of the people extends only to preserving health but excludes such public measures as may be designed to improve halth. This contention is further refined by comparing the process of chlorination with that of fluoridation. With the former, which is commonly employed, water is treated so that its consumers do not contract any diseases from the water itself. In short, it purifies. The process of fluoridation, however, is in no way connected with purification but rather has as its object curative and preventive medicine, or more accurately dentistry. To be apecific, the drinking of fluoridated water is purported to reduce the incidence of tooth decay and cavities, predominantly in children. In the words of some of its opponents, fluoridation is ‘mass medication.’ That there is, in logic, a valid factual distinction between preserving health on the one hand and improving it on the other, we do not question. We do feel, however, that it is a distinction which the courts should not be made to suffer in arriving at a determination as to whether a particular public health measure is or is not a reasonable or legitimate exercise of the power to legislate in the public interest on the state or local level. Nor should the legislature in granting City Charters be bound to anticipate and therefore required to specify what particular measures are or may become necessary and proper in the interests of the health and general welfare of the inhabitants of cities chartered by it. If all municipal policy must be determined in advance by the legislature, then the terms ‘local government,’ ‘local control’ and ‘self determination’ are empty slogans.
From the emphasized portion of Paragraph 36, Article II of the city charter (Enumerated powers not exclusive), quoted above, the conclusion is drawn that the City has those powers, in addition to those that are spelled out in the charter, which, under the constitution the legislature could enumerate specifically. The problem thus must eventually evolve to whether or not fluoridation is a proper and legitimate subject of legislation. The answer to such a question necessarily requires a conclusion of law based on the facts in each individual case. In any case where legislation invoking the police power is enacted, the deprivations and infringement of rights and preferences resulting to the individual must stand the test of substantive due process. Such legislation cannot be arbitrary or oppressive and the laudable objectives in the public interest should be such as to justify the transgression on individual rights and interest. Further, the means contrived to achieve these objectives must reasonably appear to accomplish them. Assuming legislation to be in the public interest, when it runs counter to the interest of the individual, that of the individual must give way absent a determination that the individual is being arbitrarily or unreasonably imposed upon. See generally, Hill v. State, 1944, 155 Fla. 245, 19 So.2d 857, reversed 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782, rehearing denied 326 U.S. 804, 66 S.Ct. 11, 90 L.Ed. 489, Egan v. City of Miami, 1938, 130 Fla. 465, 178 So. 132.
Although some inferences to the contrary can be drawn from the opinion written by the chancellor, he did not expressly pass on the question of whether the fluoridation of the City's water system was a proper exercise of the police power. Therefore, the question of the reasonableness vel non of the ordinance in question is not before us and we must assume that it meets the substantive due process test. The only question decided below was whether or not the City of Fort Pierce has legislative authority to fluoridate is water system. We hold that it does under the broad powers expressly conferred upon it in Article II, paragraphs 34 and 36 of its charter.
The recent case of Wilson v. City of Council Bluffs, Iowa 1961, 110 N.W.2d 569, is illustrative of how the question of fluoridation has been treated in other jurisdictions. In that case, a group of taxpayers brought a class action to enjoin the enforcement of an ordinance providing for flouridation of a municipal water supply. Under the pleadings and a stipulation of fact, the trial court determined that but two legal questions were before it. The first of these questions was the statutory authority of the City to enact the ordinance in question. The trial court held that the City had no authority, express or implied, to enact the ordinance providing for fluoridation. On appeal, the finding of no authority was reversed.
The facts and propositions of law in the Iowa case are substantially similar to those with which we are dealing in the instant case. The instant case being one of first impression in Florida, we therefore adopt the following observations and conclusions of the Iowa Supreme Court, insofar as they are applicable, in support of our conclusions hereinbefore reached.
That Court, beginning at 110 N.W.2d 571, stated:
‘IV. There can be no question under this record and the stipulation but that the city acted, in good faith and after due deliberation, under its, at least supposed, power in Sections 366.1 and 368.2, above set forth. More specifically, the ordinance itself shows it as deemed to be a health measure enacted under that part of Section 366.1 which is as follows: ‘* * * and such as shall seem necessary and proper to provide for the safety, preserve the health * * * of * * * the inhabitants thereof * * *.’ (Italics ours.) It is a ‘police power’ enactment.
“Police power' is a general term containing many ramifications and has never been pin-pointed as to its exact meaning. City of Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 184 N.W. 823, 188 N.W. 921, 23 A.L.R. 1322. No one contends that the matter of the public health is not a proper subject of the police power or that such power has not been specifically delegated to cities and towns coextensive with their corporate limits. Cecil v. Toenjes, 210 Iowa 407, 228 N.W. 874. The trial court recognizes such facts but holds the addition of fluorides to the public water supply is not an authorized attribute thereof. It bases this holding primarily upon the stipulation that the only purpose of adding fluorides is on the theory that it will prevent dental caries in children; and that dental caries is neither a contagious nor an infectious disease.
‘The trial court concedes the right of a city to enact health regulations such as are intended to overcome contagious or infectious diseases on the theory that it is for the benefit of the community as a whole rather than those who are actually affected therewith. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643. There is nothing in the cited case prohibitive of ‘aiding a segment of the whole’ rather than ‘aiding the whole’, if the aiding is in fact a health measure, nor have we been cited any such a holding. See City of Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 184 N.W. 823, 188 N.W. 921, 23 A.L.R. 1322. It is clear that the city considered it to be a health measure. Under the stipulation no claim is made that the city acted hastily or arbitrarily in enacting the ordinance, nor is there any issue as to whether it is or is not beneficial or detrimental as a health adjunct. The merits of fluoridation are not in issue, only the authority or the lack of authority in the city to enact such an ordinance. We hold it has such authority, not in specific words but necessarily implied under Sections 366.1 and 368.2, Code 1958, I.C.A. See Annotation 43 A.L.R.2d 453, 459 and authorities therein cited. While appellees argue an invasion of personal liberties guaranteed by the State and Federal Constitutions, no such issue is raised by the pleadings; was not before the trial court and will not be considered here. In re Estate of Lundgren, 250 Iowa 1233, 98 N.W.2d 839.'
In Kraus v. City of Cleveland, 1955, 163 Ohio St. 510, 127 N.E.2d 609, the Supreme Court of Ohio held that the introduction of fluoride into a municipal water supply did not infringe constitutional liberties and that the prevention and control of dental caries, a common disease of mankind, is a proper subject, in relation to public health, for legislation enacted pursuant to the police power vested in municipalities by general law and the state constitution.
The Court, in its opinion, stated at 127 N.E.2d 611-613:
‘Clearly neither an overriding public necessity or emergency nor infectious or contagious diseases are the criteria which authorize the exercise of the police power in relation to public health.
‘That dental caries is a disease is not questioned, and its prevalence is well recognized, as is the fact that the health of the teeth bears a direct relationship to general physical health. In sustaining a similar fluoridation statute, the court in Dowell v. City of Tulsa, Okl., 273 P.2d 859, 863, stated:
“The relation of dental hygiene to the health of the body generally is now so well recognized as to warrant judicial notice.'
‘Thus the fact that dental caries is neither infectious nor contagious does not remove it from the authority of a municipality to attempt its control by fluoridation of the water supply.
‘It is argued that the same result might be accomplished by private dental care, and, since there is an alternative to public regulation, the police power may not be invoked. Although it is admitted that private care would be as effective, the record shows that there are not sufficient private dental facilities to perform the task. Under our modern existence the law must change and expand with mechanical and scientific progress. What did not concern public health yesterday, because of an inability of science to cope with the problem at hand, may very well today become a matter of public health due to scientific achievement and progress. The use of fluoridation to prevent dental caries is an excellent example of this proposition. Science has discovered a method whereby dental caries may be diminished. The prevalence and danger of such caries are well known and the only practicable application of such scientific knowledge is by treating drinking water with fluoride. Thus the problem of dental caries has of necessity become one of public health.
‘Nor does the fact that the fluoride, instead of killing germs, builds up a resistance to the disease have any effect on the validity of fluoridation legislation. The court in Dowell v. City of Tulsa, supra, 273 P.2d 863, disposed of this question, in the following language:
“Plaintiffs concede, as they must, that municipalities may chlorinate their water supply, Commonwealth v. Town of Hudson, 315 Mass. 335, 52 N.E.2d 566; McQuillin Municipal Corporations (3d Ed.), Vol. 7, Sec. 24.265 and though they contend, under one proposition, that a city's treatment of its water supply with fluorides is the unlicensed practice of medicine, dentistry and pharmacy under our Statutes, they here argue that such treatment must be distinguished from treatment with chlorides, because the latter will kill germs, purify water and accordingly aid in the prevention and spread of disease, whereas fluorides will not. We think that if the putting of chlorides in public water supplies will in fact promote the public health, the distinction sought to be drawn by plaintiffs is immaterial. To us it seems ridiculous and of no consequence in considering the public health phase of the case that the substance to be added to the water may be classed as a mineral rather than a drug, antiseptic or germ killer; just as it is of little, if any, consequence whether fluoridation accomplishes its beneficial result to the public health by killing germs in the water, or by hardening the teeth or building up immunity in them to the bacteria that causes caries or tooth decay. If the latter, there can be no distinction on principle between it and compulsory vaccination or inoculation, which, for many years, has been well-established as a valid exercise of police power.'
‘Although it is true that the actual active effect of fluoridation is confined to that period of a person's life while the teeth are developing, such benefits extend on into adult life and fluoridation legislation is not such class legislation as to invalidate it.
‘It is clear from the record that the fluoridation of water for the prevention of dental caries has progressed far beyond the experimental period and has now become an established method. The facts that there are still differences of opinion as to its value and effect by a number of persons and that there are certain questions unanswered in relation to fluoridation do not make it an experiment. There are dissenters to many established and proved scientific practices which are accepted today. Dissent to scientific method does not constitute such method an experiment, and plaintiff's contention that fluoridation constitutes experimentation is without foundation.’
In sum, the cases from other jurisdictions which have passed on the question of fluoridation have rather uniformly held that a city may lawfully fluoridate its water supply. See 3 Yokley, Municipal Corporations, § 500, p. 200 (1958); Id. Vol. 1, § 64, p. 134; Ryne, Municipal Law 499 (1957); Annot., 143 A.L.R.2d 453 (1955). For further enlightening case treatment, see also Readey v. St Louis County Water Company, Mo.1961, 352 S.W.2d 622; Dowell v. Tulsa, Okla.1954, 273 P.2d 859, 43 A.L.R.2d 445; Kaul v. City of Chehalis, 1954, 45 Wash.2d 616, 277 P.2d 352; Chapman v. City of Shreveport, 1954, 225 La. 859, 74 So.2d 142.
We hold that the lower court erred in ruling, as a matter of law, that the City of Fort Pierce was without legislative authority to fluoridate its water system. In his final decree the chancellor, in commenting on the fact that each side had filed a motion for summary decree, stated in effect that the granting of relator's motion necessarily amounted to a denial of the motion filed by respondent but without consideration as to whether respondent's motion was well founded procedurally.
The summary final decree in favor of relator is hereby reversed with directions to the chancellor to consider and expressly rule upon respondent's motion for summary decree.
Reversed.
SMITH, J., and LOVE, WM. K., Associate Judge, concur.

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Quiles v. City of Boynton Beach

Florida, Unlicensed Practice of Medicine/Compulsory Medication, Right to privacy, State police power

Plaintiff

Jesus F. Quiles

Defendant

City of Boynton Beach

State

Florida

Other Parties

Gerald Broening

Case Tags

- Unlicensed Practice of Medicine/Compulsory Medication

- Right to privacy

- State police power

Citation

802 So.2d 397 (Fla. Dist. Ct. App. 2001)

Year

2001-00-00T00:00:00

Court Name

Court of Appeals of Florida, Fourth District

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Gross

Opinion Text

GROSS, J.
Jesus F. Quiles appeals from a final order granting the City of Boynton Beach's motion to dismiss with prejudice his claim seeking declaratory and injunctive relief. Quiles alleges that by voting to add fluoride to its potable water supply, the city violated his right to refuse medical treatment under the United States and Florida Constitutions, thereby exceeding its authority to enact such a measure. We affirm and write to address the constitutional issue.
On January 26, 2000, the Boynton Beach City Commission held a public meeting to consider the merits of fluoridating its water supply, and to hear input from residents and other qualified individuals on the issue of fluoridation. After taking testimony, reviewing documents, and posing questions to the supporters and opponents of fluoridation in attendance, the commission voted unanimously to fluoridate its water supply.
On August 11, 2000, Quiles filed suit against the city and its mayor alleging that the fluoridation measure violated his constitutional rights under the state and federal constitutions, and seeking declaratory and injunctive relief to stop the city from fluoridating its water supply. On September 5, 2000, the city filed a motion to dismiss the complaint for failure to state a cause of action.
The trial court ruled that the city had the authority to add fluoride to its water supply, and that doing so did not implicate Quiles's right to refuse medical treatment under Article I, Section 23 of the Florida Constitution.
The Florida Constitution, as well as Florida law enacted pursuant to it, gives municipalities broad “governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services” and to “exercise any power for municipal purposes.” Art. VIII, § 2(b), Fla. Const.; § 166.021, Fla. Stat. (2000). In defining the scope of a “municipal purpose,” Florida courts have long held that “[i]t is the duty of public authorities in municipalities to protect the safety, the health and the general welfare of the citizens” and that “[t]his duty involves sanitary and health regulations.” Garvin v. Baker, 59 So.2d 360, 364 (Fla.1952). Such proper municipal health regulations include the regulation of a municipality's waterworks. See State v. Tampa Waterworks Co., 56 Fla. 858, 47 So. 358 (1908). Ordinances regulating municipal water treatment “are not expressly or by fair implication limited to the establishment of a municipal plant.” Id. at 361. In fact, adding fluoride to the water supply of a municipality has been specifically upheld as a valid exercise of a municipality's police power. See City Comm'n of Fort Pierce v. State ex rel. Altenhoff, 143 So.2d 879, 888-89 (Fla. 2d DCA 1962).
Quiles does not argue that the city is without authority to run its own water treatment facility or regulate its own water supply. Nor does he object to the city adding chlorine to its water supply. Quiles objects only to the fluoridation of the water because he believes that fluoride has no real health benefits and that it is not necessary to make the water potable or fight serious disease; it is added to water merely as a prophylactic measure to fight tooth decay. He argues, therefore, that to add fluoride to the water supply is beyond the city's police power, and courts should apply the highest standard of judicial review, strict scrutiny, to such a decision.
Quiles contends that drinking fluoridated water can cause a host of adverse health effects. Because of these adverse health effects, Quiles chooses not to ingest fluoride. Being forced to consume fluoride through the city's water supply, Quiles asserts, amounts to “compulsory medication” that violates his right to privacy set forth in Article I, Section 23 of the Florida Constitution.
In arguing this position, Quiles relies on Singletary v. Costello, 665 So.2d 1099 (Fla. 4th DCA 1996). In Singletary, this court stated that
a competent person has the constitutional right to choose or refuse medical treatment and that right extends to all relevant decisions concerning one's health. Courts overwhelmingly have held that a person may refuse or remove artificial life support, whether supplying oxygen by a mechanical respirator or supplying food and water through a feeding tube.
Id. at 1104 (quoting In re Guardianship of Browning, 568 So.2d 4, 11-12 (Fla.1990)). The right identified by this court in Singletary is not qualified “on the basis of the denomination of a medical procedure as major or minor, ordinary or extraordinary, life-prolonging, life-sustaining, or otherwise.” Id. (quoting Browning, 568 So.2d at 11 n. 6). Quiles argues that this court should extend the holding of Singletary to require a compelling state interest in order for the city to fluoridate its water. In doing so, Quiles equates the fluoridation of city water to the complusory medical treatment at issue in Browning and Singletary.
This case is distinguishable from Singletary and Browning. The introduction of fluoride into the city's water is not a “medical procedure,” as contemplated by either this court in Singletary or the supreme court. Browning, 568 So.2d at 11 n. 6.
Importantly, the city proposes to fluoridate the water before it enters each household in the city; it is not seeking to introduce the mineral directly into Quiles's bloodstream. Therefore, the city's fluoridation of its water stops with Quiles's water faucet. The city is not compelling him to drink it. He is free to filter it, boil it, distill it, mix it with purifying spirits, or purchase bottled drinking water. His freedom to choose not to ingest fluoride remains intact.
The cases upon which Quiles relies involve the state's power to physically force “artificial life-support” directly into the body of an individual claiming the right to refuse such treatment. Browning, 568 So.2d at 11. They involve highly invasive procedures where the state sought to override a person's freedom to choose. This is a far cry from the action taken by the city in this case.
Quiles argues that the city's power should be limited to protecting the health of its citizens, and not merely improving it by preventing certain conditions. We agree with the second district's analysis in Altenhoff:
[T]here is, in logic, a valid factual distinction between preserving health on one hand and improving it on the other.... We do feel, however, that it is a distinction which the courts should not be made to suffer in arriving at a determination as to whether a particular public health measure is or is not a reasonable or legitimate exercise of power to legislate in the public interest on the state or local level.
143 So.2d at 888 (emphasis in original). As long as a municipality is acting within its legal and constitutional limitations, it is not the duty of the courts to judge the wisdom of a municipality when adopting health measures, whether those measures act to protect or improve the health of its citizens.
We agree with the second district in Altenhoff, and hold that the City of Boynton Beach has home rule authority to fluoridate its water, and that the decision to do so is neither an arbitrary nor unreasonable imposition on the constitutional rights of its residents. 143 So.2d at 888; see, e.g., Young v. Bd. of Health of Somerville, 61 N.J. 76, 293 A.2d 164, 165 (1972) ( “courts throughout the nation have been virtually unanimous in ... upholding fluoridation of drinking water as a valid public health measure whenever a challenge has been presented”); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326, 333-34 (1964) (holding that a municipality has the power to fluoridate its water which is “reasonably related to the common good” and not “unreasonable or arbitrary”); Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609, 613 (1955) (rejecting the arguments that fluoridation is an infringement on individual rights and is mass medication).
The trial court's dismissal of the plaintiff's complaint is affirmed.
GUNTHER and WARNER, JJ., concur.

GOLDENHERSH, Justice:
Defendants, the Director of the Department of Public Health of the State of Illinois, the Director of the Environmental Protection Agency of the State of Illinois, and the Alton Water Company, appealed (87 Ill.2d R. 302(a)) from the judgment of the circuit court of Madison County holding unconstitutional section 7a of “An Act to provide for safeguarding the public health by vesting certain measures of control and supervision in the Department of Public Health over public water supplies in the State” (Ill.Rev.Stat.1981, ch. 111 1/2 , par. 121g1). The court enjoined the Department of Public Health and the Environmental Protection Agency from enforcing the statute, and enjoined Alton Water Company from fluoridating its public water supply. We allowed defendants' motion to stay enforcement of the judgment pending appeal.
Section 7a provides:
“In order to protect the dental health of all citizens, especially children, the Department shall promulgate rules to provide for the addition of fluoride to public water supplies by the owners or official custodians thereof. Such rules shall provide for the addition of the fluoride to the water supplies so as to maintain a fluoride content of not less than 0.9 milligram per liter nor more than 1.2 milligrams per liter.” Ill.Rev.Stat.1981, ch. 111 1/2 , par. 121g1.
This action was commenced on August 1, 1968, requesting that the Department of Public Health be enjoined from enforcing the fluoridation statute and that Alton Water Company be prevented from introducing fluorides into its system. The complaint alleged that fluoride in public drinking water is dangerous to health and that its use did not prevent dental caries (tooth decay). After several dismissals and reinstatements the complaint was dismissed for failure to state a cause of action. Plaintiffs appealed, and the appellate court, holding that the complaint stated a cause of action, reversed. ( Illinois Pure Water Committee, Inc. v. Yoder (1972), 6 Ill.App.3d 659, 286 N.E.2d 155.) In 1975 the plaintiffs joined the Illinois Environmental Protection Agency as a party defendant.
Plaintiffs' seventh amended complaint contained three counts, but only count I survived the trial. Count II, alleging a class action, was dismissed for failure to meet the requirements set forth in section 57.2 of the Civil Practice Act (Ill.Rev.Stat.1981, ch. 110, par. 57.2). Count III, which concerned a plaintiff who alleged that fluoridation denied him freedom of religion under the first and fourteenth amendments to the United States Constitution and article I of the Illinois Constitution of 1970 was also dismissed. In the surviving count (count I), plaintiffs sought a declaratory judgment that section 7(a) was an unreasonable exercise of the police power and unconstitutional. Plaintiffs also sought an order enjoining Alton Water Company from introducing fluoride into the public water supply and enjoining the Department of Public Health and the Environmental Protection Agency from enforcing the statute. Plaintiffs contended that compliance with the statute denied them their right under article XI of the 1970 Illinois Constitution to a healthful environment, denied them their right under article I, section 12, of the 1970 Illinois Constitution to a remedy for all wrongs, and denied them, without due process of law under the fifth amendment to the United States Constitution, and article I, section 2 of the 1970 Illinois Constitution, their right to health and life.
The record is voluminous. The circuit court heard testimony from 11 witnesses and examined 151 exhibits. In its order, the court reviewed the testimony and concluded that “The evidence breaks down in four (4) basic groups: Allergy and Intolerance, Chromosome Study Findings, Other Chemical and Biochemical Characteristics and Epidemiological Findings.” It held that section 7a was unconstitutional as an unreasonable exercise of police power in violation of article I, section 2, and “in violation of the terms and spirit of Article XI sections 1 and 2” of the Constitution of 1970.
With respect to allergy and intolerance, Dr. George Waldbott, called by plaintiffs, described the symptoms of fluoride poisoning. He described several cases of patients diagnosed as having reactions intolerant to fluoride, whose symptoms disappeared when they stopped drinking fluoridated water. He described a study he had conducted in Annapolis, Maryland, following an accidental spill into the public water system of fluoride at a level greatly in excess of the one-part-per-million rate utilized in most fluoridation operations. He asserted that his findings in the study confirmed a connection between fluoride intoxication and drinking water.
On cross-examination Dr. Waldbott admitted that his patients' symptoms could have been psychosomatic. He admitted that his interviews with his patients were not “double-blind” studies; that is, his patients knew that they had been drinking fluoridated water. He also admitted that he had no formal training in research techniques and that allergic reactions to fluoride are quite rare.
In the area of chromosome-study findings, the plaintiffs offered the testimony of Dr. Aly Mohammed, a professor of biochemistry at the University of Missouri at Kansas City. He testified that his experiments showed a chromosomal aberration rate for mice, in bone marrow and spermatocyte cells, at various dosages of fluorides and at various times during his study. He concluded that sodium fluoride can cause chromosomal changes in mice even at concentrations as low as one part per million in drinking water. He stated that fluoride could be considered a mutagen, many of which are carcinogenic, and thus fluoride could be a carcinogen.
Dr. John Yiamouyiannis testified for plaintiffs and discussed other chemical and biochemical characteristics of fluoride. He stated that fluoride inhibits those enzymes which are responsible for the repair of damaged DNA molecules. He explained that this characteristic might make fluoride itself a carcinogen or that fluoride might give a selection advantage to existing cancer cells over normal cells.
Concerning epidemiological findings, Dr. Dean Burk, a cytochemist formerly employed by the National Cancer Institute, and Dr. Yiamouyiannis testified as to the findings of their study which showed an increase in cancer deaths following the introduction of fluoridation in certain cities. They studied the cancer death rates of the 10 largest cities in the United States that fluoridated their water supplies during the period from 1952 to 1956, using as a control group the 10 largest cities that remained nonfluoridated up to at least 1969. Dr. Yiamouyiannis explained that differences in the age, sex, or race of the populations could not have accounted for the difference in the cancer death rates.
In cross-examination it was admitted that neither Dr. Burk nor Dr. Yiamouyiannis had any formal training in the fields of epidemiology or statistics; that both were experts in other fields; and that this epidemiological study was their first. Dr. Burk admitted that he had an antifluoride stance before he undertook this study. Likewise, Dr. Yiamouyiannis acknowledged that he was the science director of the National Health Federation, and that group had hired him to be a fluoride fighter. Dr. Yiamouyiannis also admitted that he was paid by the Illinois Pure Water Committee to testify in this case and that this group is adamantly opposed to artificial fluoridation. The trial court noted that “Dr. Yiamouyiannis not only testified as an expert on behalf of plaintiffs, but also that he was present every day at the trial and seated at plaintiffs' counsels' [sic ] table where he appeared to be giving advice and directing strategy to some degree. The conclusion was that Drs. Burk and Yiamouyiannis could hardly be termed ‘disinterested’ scientists.”
Defendants called Dr. Marilyn Lantz, Assistant Professor of Dentistry at the Dental School of Southern Illinois University. In addition to her degree of Doctor of Dental Medicine, she holds the degree of Ph.D in biochemistry. She disputed the findings to which Drs. Waldbott and Mohammed testified. Dr. Charles E. Bennett, employed by the Illinois Department of Health, who holds the degree of Ph.D in ecology, criticized the methods used by Drs. Burk and Yiamouyiannis in their study and pointed out that the statistics differed from those compiled by the U.S. Department of Health, Education and Welfare. He stated that the statistics showed that the difference in the cancer-death rates between nonfluoridated and fluoridated cities was insignificant.
Dr. William Sly, a physician and professor of Medicine, Genetics and Pediatrics at Washington University School of Medicine, called by defendants, pointed out defects in the exhibits upon which Dr. Mohammed based his conclusions, and errors in the conclusions which Dr. Mohammed drew from them.
Defendants contend that the statute providing for mandatory fluoridation of the public water supply is a reasonable exercise of the police power. They argue that enforcement of the statute may not be enjoined merely on the showing that it is debatable whether requiring fluoridation is a valid public health measure. Plaintiffs contend that the usual standards applicable to business, social and economic legislation do not apply here. They argue that fundamental rights, namely the right to life and health, have been placed in jeopardy without due process of law, and the validity of the statute can be upheld only if it is shown that there is a compelling State interest which requires it. Furthermore, they contend, the statute must be so narrowly drawn as to express only the legitimate State interests at stake.
In Schuringa v. City of Chicago (1964), 30 Ill.2d 504, 198 N.E.2d 326, the plaintiff taxpayers sought to enjoin the fluoridation of the defendant city's water supply. Plaintiffs contended that fluoridation infringed upon fundamental liberties protected by constitutional guarantees of due process of law. The court said:
“...settled and certain is the concept that a police measure, to be beyond the pale of constitutional infirmity, must bear a reasonable relation to the public health or other purpose sought to be served, the means being reasonably necessary and suitable for the accomplishment of such purpose, ( Strub v. Village of Deerfield, 19 Ill.2d 401 [167 N.E.2d 178]; Vissering Mercantile Co. v. Annunzio, 1 Ill.2d 108 [115 N.E.2d 306]; Lawton v. Steele, 152 U.S. 133 [14 S.Ct. 499], 38 L.Ed. 385,) and the principle that courts will not interfere with legislation falling within the orbit of a municipality's police power unless there is a palpably arbitrary or unfair exercise of the power. ( City of Chicago v. R. & X. Restaurant, 369 Ill. 65 [15 N.E.2d 725]; Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384 [29 N.E.2d 495].)” ( Schuringa v. City of Chicago (1964), 30 Ill.2d 504, 509, 198 N.E.2d 326.)
The court found that artificial fluoridation of water was reasonably related to the public health, and that the program adopted by Chicago (similar to the one in question here) was necessary and suitable for the protection of public health. ( 30 Ill.2d 504, 516, 198 N.E.2d 326.) The court held that the plaintiffs had failed to sustain their burden of proving that the resolution requiring fluoridation was unreasonable, noting that “the wisdom, necessity and expediency of police regulations are no concern of the courts, but are matters primarily for the legislative body of the municipality, and courts are without power to interfere merely because they believe a different regulation might have been wiser or better. City of Chicago v. Waters, 363 Ill. 125 [1 N.E.2d 396]; Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384 [29 N.E.2d 495],” Schuringa v. City of Chicago (1964), 30 Ill.2d 504, 515-16, 198 N.E.2d 326.
Here, as in Schuringa, we find that plaintiffs have not sustained their burden of showing that the fluoridation statute is so unreasonable as to be invalid. We note the comment contained in the circuit court order that, “In view of the plaintiffs' evidence, even though it has long been recognized that artificial fluoridation of public water supplies helps fight tooth decay, a risk exists of serious health hazards.” At most, plaintiffs have shown that there may be some risk of a higher incidence of cancer and, to a lesser degree, other diseases and conditions. The extent of this risk, however, is uncertain. In discussing the evidence, the circuit court noted that “the debate has been lively and continuous and no one can reasonably argue that important health, safety or environmental interests lie on only one side of the debate.”
We construe the circuit court's comment to mean that plaintiffs have shown, not that the risk was so great that fluoridation was unreasonable, but that the question was shown to be debatable. Under these circumstances plaintiffs have failed to show an unreasonable exercise of the police power. We note that many courts, in the interest of public health, have upheld fluoridation as a proper exercise of the State's police power. Commonwealth v. City of Lebanon (1978), 482 Pa. 66, 73 n. 9, 393 A.2d 381, 384 n. 9 (see cases cited in appendix to decision).
Plaintiffs contend that because fluoridation imposes upon a fundamental right guaranteed to them by the United States Constitution, strict scrutiny of the statute is required. This contention, however, has been rejected (Bellassai v. McAvoy (N.D.Ohio June 1, 1981), No. C80-376A, aff'd 703 F.2d 558 (6th Cir. May 24, 1982), cert. denied (1982), 459 U.S. 971, 103 S.Ct. 301, 74 L.Ed.2d 282), and we agree. See also Kraus v. City of Cleveland (C.P.Cuyahoga County 1953), 55 Ohio Op. 6, 116 N.E.2d 779, aff'd (1955), 163 Ohio St. 559, 127 N.E.2d 609, appeal dismissed (1956), 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463.
Plaintiffs contend, too, that because the 1970 Illinois Constitution guarantees them the right to a healthful environment (Ill. Const.1970, art. XI, secs. 1, 2), strict scrutiny of the statute is required. Defendants concede that these provisions give standing to individuals to bring actions for damages to the environment where previous common law doctrine restricted standing in such cases to public officials, but they argue that these provisions have no effect upon the level of scrutiny to be applied to the statute.
Plaintiffs cite no authority for the proposition that sections 1 and 2 of article XI create a “fundamental” right to a healthful environment, and do not explain why we should subject statutes affecting the environment to a higher level of scrutiny. In the absence of more persuasive reasoning, we decline to do so.
On this record, we conclude that the evidence shows, at most, the existence of a debate upon the dangers and benefits of fluoridation. While the circuit court was correct in stating that “to carry the burden of proof in this case the plaintiffs' evidence need not be conclusive that fluoride will cause adverse health effects,” we cannot say that the evidence here is sufficient to declare that the fluoridation statute is an unreasonable exercise of the police power. “At best, however, the evidence with respect thereto presents only a debatable question where there is room for difference of opinion, and...it is enough to say it is an area in which the legislative judgment must prevail.” Schuringa v. City of Chicago (1964), 30 Ill.2d 504, 516, 198 N.E.2d 326.
For the foregoing reasons, the judgment of the circuit court of Madison County is reversed.
Judgment reversed.

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Illinois Pure Water Committee, Inc. v. Yoder

Illinois, Unlicensed Practice of Medicine/Compulsory Medication, Due Process Violations, State police power

Plaintiff

Illinois Pure Water Committee, Inc.

Defendant

Dr. Franklin Yoder, Director of Department of Public Health

State

Illinois

Other Parties

-

Case Tags

- Unlicensed Practice of Medicine/Compulsory Medication

- Due Process Violations

- State police power

Citation

6 Ill. App.3d 659; 286 N.E.2d 155 (Ill. App. Ct. 1972)

Year

1972-00-00T00:00:00

Court Name

Appellate Court of Illinois, Fifth District

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Moran GJ

Opinion Text

GEORGE J. MORAN, Presiding Justice.
This action for injunctive and declaratory relief was brought against the defendant, Dr. Franklin Yoder, Director of the Illinois Department of Public Health and the Alton Water Company. The defendant filed a motion to strike and dismiss the complaint and the lower court, upon consideration of the pleadings, granted defendant's motion and ruled that the complaint failed to state a cause of action. An appeal was taken from the order.
The plaintiffs are the Illinois Pure Water Committee, Inc., Ruby N. Hale, individually and as an officer of the corporation plaintiff, J. O. Bear, mayor and chief executive officer of the Village of Pesotum, Illinois, and George Edward Hiscott, IV, a Christian Scientist and resident of Highland Park, Illinois. The plaintiffs brought the action individually and as respresentatives of all citizens of the State of Illinois and all users of public water supplies in the state. The plaintiffs sought the following relief: (1) A temporary injunction pending the outcome of the litigation; (2) a declaration that Chapter 111 1/2, Section 121g1 which provides for compulsory fluoridation of water supplies, is unconstitutional, or in the alternative; (3) a declaration that Dr. Yoder and his department have failed to adopt rules and regulations in accordance with statutory mandate; (4) a declaration that the defendants have usurped legislative function by adopting rules which do not conform to the statutory mandate; and (5) after a hearing on the cause a permanent injunction restraining defendants from (1) introducing fluorine into the water supplies and (2) enforcing or complying with the provisions of Chapter 111 1/2, Section 121g1.
Motions to dismiss or strike a pleading admit facts well pleaded, but not conclusions of law or conclusions of facts unsupported by allegations of specific facts upon which such conclusions rest and when constitutional issues are involved, facts relied upon to rebut the presumption of constitutionality must be specifically set forth. Pierce v. Carpentier, 20 Ill.2d 526, 169 N.E.2d 747; Heyman v. Mahin, 49 Ill.2d 284, 275 N.E.2d 421.
In amended Count I the plaintiffs allege the following:
1. That fluorine is being injected into the water system pursuant to Chapter 111 1/2, Sec. 121, and it is a poisonous, noxious and deleterious element;
2. That the defendant has not promulgated any rules nor provided for any facilities which will assure all of the citizens of the State of Illinois that poisonous or noxious substances, dangerous to the health of the citizens will not be introduced into the water supply of this State-Section 121(g)(1) requires all public supplier of water in this State to introduce the element ‘fluorine’ into the water supply of this State under conditions which render the consumption of public water supply by the citizens of this State, potentially hazardous and dangerous to the lives, health and welfare of the citizens consuming said water;
3. That there are no provisions for trained technicians who have ability to watch the system;
4. That there are no safe tests to regulate the level of fluorine and testing on a monthly basis is inadequate.
5. That the compulsory introduction of fluorides into the water supplies of this state is so hazardous by reason of its poisonous nature to the human body, that the level of concentration must be held to less than 1.2 milligrams per liter under the provisions of Chapter 111 1/2, Section (g1), but neither said statute nor the regulations of the Department of Public Health attempt to take into consideration the environmental exposure of citizens of this state to fluorides from sources other than the levels provided to be maintained in the water supplies hereof and by reason thereof, citizens of this state will be forced to submit their bodies to hazardous and dangerous levels of fluorides, if the water supplies of the State are polluted by the introduction of this noxious substance purportedly under the provisions of said statute and the regulations of the Department of Public Health.
6. That scientific knowledge has greatly expanded since 1964. (In this year the Illinois Supreme Court in Shuringa v. City of Chicago, 30 Ill.2d 501, (504) 198 N.E.2d 326 (1964) ruled that fluoridation was not unhealthy and was a proper exercise of the police power of the municipality) which evidences that fluorides are harmful and injurious.
As a result of this the plaintiffs contend that (1) the statute is unconstitutional because it denies plaintiffs due process of law and places their lives and health in jeopardy without due process of law by forcing the plaintiffs to consume the tainted water; (2) the statute is so vague and uncertain and lacks requisite safeguards as to render it unconstitutional; (3) that the statute is an unconstitutional delegation of authority.
The merits of the case may prove the well pleaded portions of these contentions to be false, but this case was decided on the pleadings and one must assume these facts as true. Making such an assumption, one must conclude that the plaintiffs did state a cause of action and it was error to dismiss their complaint.
Plaintiff Bear, as mayor, alleges only that the fluoridation requirement would necessitate great investments that would be financially ruinous to his village. There are no allegations of specific facts alleged which support this claim. The motion to strike and dismiss pointed out that in such capacity he has failed to allege his authority in his official capacity to join his village in this action. Therefore as to plaintiff Bear as mayor, the action was properly dismissed, and paragraph eight of amended Count I should be stricken.
In Count II of the amended complaint the plaintiff George Edward Hiscott IV alleged that he is a member of the Christian Science Church and that the compulsory introduction of fluorides into the water supplies forces him to subject himself to therapeutic treatment by the uses of medicine in direct contradiction to the tenets of his faith. He further alleged that this prohibits him and others of his faith from the free exercise of his religion. This question has not been determined in this jurisdiction and if this case had been decided on the merits, the court might well find that fluoridation is not medication as courts in other jurisdictions have. (See Graybeal v. McNevin, 439 S.W.2d 323 (Ky.Ct.App.1969) and the compilation of cases therein.) But this question was decided on the pleadings and assuming the facts are true, then the plaintiff has stated a cause of action.
Plaintiffs, Illinois Pure Water Committee, Inc., Ruby N. Hale, George Edward Hiscott IV and J. O. Bear individually, did allege sufficient facts to state a cause of action and the order of the lower court dismissing their complaint is reversed. Plaintiff J. O. Bear as mayor did not allege facts sufficient to state a cause of action and the order of the lower court as to him in that capacity is affirmed.
Affirmed in part and reversed in part.
EBERSPACHER, J., concurs.
JONES, Justice (dissenting):
I must respectfully dissent from the majority opinion.
The plaintiffs are a committee, organized in corporate form, which claims as its concern water quality throughout the State of Illinois, an individual customer of the defendant Alton Water Company, J. O. Bear, who claims to sue as an individual and as ‘Mayor’ of the Village of Pesotum, and George Edward Hiscott, IV, a resident of Highland Park, in Cook County, and a member of the Christian Science Church. All of the plaintiffs have commenced an action against Dr. Franklin Yoder, Director of the Department of Public Health of the State of Illinois, and all except Hiscott have brought an action against the Alton Water Company. It is not clear what action J. O. Bear, individually, or as Mayor of Pesotum, claims against the Alton Water Company but it appears that all of the plaintiffs claim some representative capacity except Ruby N. Hale, who, at least in part, is supplied water by the Alton Water Company.
No one of these persons or plaintiffs are individually affected by fluoridation of water supply unless it would be Ruby N. Hale, and with respect to her, no special allegations of immediate personal effect upon her health are made.
In substance, the allegations of all of the plaintiffs are based upon their general concern for the health and welfare of residents of the State of Illinois. None of the plaintiffs have any special standing other than what has been set forth above. Apparently leave was given the plaintiff Hiscott to intervene in order to assert that his religious rights are involved. Mr. Hiscott's position is indeed a special one in that he claims that the statute of the State of Illinois violates his constitutional right of freedom of religion, in that it violates the tenets of his faith as practiced by him as an individual. He does not allege that the Christian Science faith is religiously opposed to the use of medicine and pharmaceutical compounds, but apparently that is his own personal religion.
All of the plaintiffs ask for a temporary and permanent injunction against the fluoridation of public water supplies in the State and the declaration of a statute governing fluoridation unconstitutional or, alternately, to enjoin the enforcement of the statute until the Director of the Department of Public Health and the Department of Public Health have adopted rules and regulations in conformity with the mandate of the statute. The complaint also asks an injunction against the Department of Public Health, which is not made a party to the proceeding.
Motions to dismiss were filed by the Director of the Department of Public Health and by the Alton Water Company. As a part of the Director's motion an exhibit was attached setting forth certain rules which were adopted on January 27, 1969 following the complaint, which was filed on August 1, 1968, after which the plaintiffs filed an amendment to the amended complaint alleging that the defendants ‘intend’ to introduce into the public water supply of citizens of the State, fluorine, which is ‘poisonous, noxious and deleterious,’ that scientific knowledge has been greatly expanded since 1964 which evidences that fluorides in the quantities being introduced into public water supplies are harmful and injurious; that the present method of fluoridation fails to appreciate variations in fluorine concentrations, as same depends on temperature and variations in fluorine ingestion in that individuals consume more water in hot weather than in cold, and said variations produce dangerous concentrations of fluorine.
I would affirm the action of the trial judge in granting the motion to dismiss. The plaintiffs, after two amendments, have not asked for further right to amend and the appeal is taken strictly and solely from the order of the trial court dismissing the amended complaint, upon the finding that the complaint fails to state a cause of action upon which the relief sought ‘should be granted.’ I understand that the trial court has considered that in taking the allegations of the plaintiffs' complaint as confessed where they are well pleaded he has determined that this is not a case in which plaintiffs are entitled to injunctive relief.
In the traditions of the law it is not every case, even of alleged unconstitutionality, where an injunction will be issued, particularly against state officers in the performance of a public duty. To issue the injunction sought in this case would have the effect of denying all of the citizens of this State fluoridation of public water supplies. The legislature of our State has determined that fluoridation should be permitted, and this determination has withstood lengthy and thoroughgoing legal attack in which all of the points raised in the plaintiffs' complaint, as amended, were raised, except those raised by the plaintiff Hiscott. An attempt by the other plaintiffs to raise a question of deprival of religious freedom is not accompanied by any allegation of fact which puts this matter in issue as to them. I am persuaded that all of the points pertaining to constitutionality of fluoridation have been raised and decided unfavorably to the plaintiffs in Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1964) and other cases. The allegation that scientific knowledge has greatly expanded since 1964 is the baldest sort of conclusion. It is common knowledge that scientific tests and information are constantly being accumulated and with respect to any matter it could be said that scientific knowledge has greatly expanded since 1964. That such scientific knowledge ‘evidences that fluorides in the quantities being introduced into public water supplies are harmful and injurious' is totally conclusionary. It does not say in what quantities the plaintiffs claim that fluorides are being introduced into public water supplies nor does it speak to any methodology that may be involved. It does not allege any particular scientific finding which has changed or revealed previous scientific knowledge to be erroneous and unreliable, and it does not say harmful and injurious to whom and on what account.
It is abundantly apparent that certain scientists believed that fluorides, under certain circumstances, were harmful and injurious to the health of persons ingesting them in water. The passage of the legislation considered in the Schuringa case itself did not resolve this scientific controversy. It simply made a choice based on what was determined to be the better view. To say that on the suit of one private citizen, who is directly affected by one water company, that it is necessary for the Director of Public Health to enter into lengthy litigation based upon such a conclusion as is set forth in the plaintiffs' complaint does not seem legitimate or in accordance with logic. Any citizen of this State could make a similar allegation one day after the previous case so that the matter of fluoridation would be under litigation until the end of time. I do not contend, of course, that further scientific consideration of the propriety of fluoridation should be foreclosed. Some future revelation may disprove the currently accepted thought on the matter. The process is not unknown in the field of public health. My point is that the plaintiffs' complaint is silent as to any fresh scientific discovery that bears on the question.
After all, this is not litigation between private persons. The entire concern of the plaintiffs is that there is a possibility that some person or persons in this State will be injuried if presently contemplated steps are carried out. It has been an equitable rule from the earliest days that the power to grant injunctive relief is never exercised to allay mere apprehension of injury, or against something merely feared as liable to occur at some indefinite time in the future. ‘It must appear to the satisfaction of the court that the apprehension is well grounded, and that there is a reasonable probability that a real injury, for which there is no adequate remedy at law, will occur if the injunction is not granted. ...The court ought not to interfere, however, where the injury apprehended is of a character to justify conflicting opinions as to whether it will in fact ever be realized, or where nothing more than a mere opportunity to do wrong is disclosed.’ 42 American Jurisprudence 2d, Injunctions, Section 31.
Similarly, ‘As a general rule, equity does not undertake the revision or supervision of governmental action lawfully exercised through the legislative, or executive or administrative, departments of the government. It will not interfere by injunction with the duties of any department of the government except under special circumstances and when necessary to the protection of property or other rights against irreparable injury.’ 42 American Jurisprudence 2d, Injunctions, Section 175. Further at page 943, ‘Where a public officer essays to exercise the jurisdiction conferred upon him, his errors, although subject to subsequent correction, cannot be enjoined as an arbitrary exercise of his authority. Particularly will courts hesitate to interfere by injunction where the acts complained of are essential to the health and comfort of the people at large.’
It should also be noted that the statutory scheme involved provided for hearings with respect to the safety of public water supply when the health of water customers is or may become endangered, under the terms of ch. 111 1/2, sec. 121K, Ill.Rev.Stat.1967. Such a request could have been made in this particular instance, but there was none.
The only semi-factual allegation contained in the complaint with respect to the direct deficiencies in the present plan for fluoridation is that the proper officials have failed to take into consideration the environmental exposure of citizens of this State to fluorides from sources other than the levels provided to be maintained in the public water supplies. Clearly, if fluorides were found to be present in a water supply because of naturally occurring conditions, and, as a result of the mechanical addition of fluoride as provided by the statute and rules, a dangerous or deleterious concentration of fluoride was created, then this could specifically be presented to the Director with the request that he consider whether fluorine should not be reduced under the particular circumstances. There would be no necessity of enjoining the application of fluorides throughout the State.
It seems to me that one would be wholly unjustified in assuming that a majority of a quorum of the legislature which enacted the legislation, the Governor who signed the legislation into law, and the Director of Public Health are in some sort of a conspiracy to poison the citizens of the State while their backs are turned. I can see no reason for assuming, as the plaintiffs do, that the Director of Public Health would not respond at once if there was some reason for believing that fluorides were about to injure the health of any persons in this State. The complaints of the plaintiffs would, it seems to me, best be directed to the legislature again, rather than directed to the courts who do not have an exclusive corner upon truth. It is not claimed that the Director is acting beyond the legislative mandate and that there is a lack of power. The basic question raised is the wiseness of the legislative enactment and of the effectuating rules as they now stand.
It was originally contended by the plaintiffs that the Director had failed to establish proper implementation of the statute by adoption of rules. From the attachment made to the motion to dismiss filed by the Director it appears that such rules have been adopted. Therefore, this particular point has become moot. If any one particular rule exposed the public to danger this could be alleged, together with factual circumstances which would make it applicable, and a cause of action for a legal and, if necessary, equitable action, stated.
I have already eliminated any basis for considering the constitutional claims with respect to violation of freedom of religion on the part of all of the plaintiffs except Hiscott. Hiscott's complaint is only against the defendant Yoder and, therefore, should not be used as a basis for sustaining a right of action against the Alton Water Company. Hiscott is only an intervenor and under the rules applicable to intervention where his claim is not based upon a common question of law he is not entitled to intervene. Section 26.1 of the Civil Practive Act (Ill.Rev.Stat., ch. 110, sec. 26.1). Further, an intervenor does not have the right to raise new issues. Chapter 110, section 26.1(6) (Ill.Rev.Stat., ch. 110, sec. 26.1(6)). Therefore, the intervenor's claims cannot be the basis for this action.
With respect to claims of loss of freedom of religion it seems apparent that claims of religious right which conflict with the general or common health and good must yield to the common health and good. One can readily visualize a religious belief which would oppose a central government or any practive having to do with public health or, as is contended here, is opposed to any ‘use of...pharmaceutical compounds.’ It is obvious that no introduction of pharmaceuticals into the public water supply can meet the requirements of this religious belief. Under such contention treatment of public water supplies becomes an impossibility. It seems to me that this particular plaintiff may have full religious freedom only if he does not make use of a public water supply. His objection to consuming treated water from the public supply can easily be met by his use of untreated water from readily available private sources. In the same manner consumption of foodstuffs from ordinary sources of the public food supplies are avoided by those whose religious beliefs permit the consumption of only those foodstuffs prepared by persons possessing particular religious qualifications.
Even if it be conceded (which I do not) that plaintiff Hiscott has standing to raise his point, I would still uphold the trial court in its dismissal of the Hiscott portion of the complaint. It is unnecessary to have an evidentiary hearing on the issue in order to resolve it. In the posture it is presented it is purely a question of law. Simply stated, the issue raised by plaintiff Hiscott is whether it is the law in Illinois that fluoridation of a public water supply deprives plaintiff of his constitutionally guaranteed freedom of religion. Manifestly it does not. It was so determined in Graybeal v. McNeven, 439 S.W.2d 323 (Ky.Ct. of Appeals, 1969) and in fourteen other states (as cited in the Graybeal case). While it is true that these cases are not binding on Illinois courts they nevertheless foretell the determination here. Talty v. Schoenholz, 323 Ill. 232, 154 N.E. 139; Illinois Law & Practice, Courts, Sec. 84.
In short, the legitimate contentions of the plaintiffs can only be carried out by the abolition of fluoridation or by the assumption that either the Director of the Department of Public Health or those persons charged with the processing of water will behave unlawfully or so as to expose the public to poisoning. No tribunal can rule out the possibility that someone, somewhere might not be exposed to fluorine in unhealthy concentrations. The best that can be done is to establish a policy of permissible concentrations and then adopt rules intended to carry out this plan. It appears on the face of the matter that such has been done. As was quoted in Sutton v. Findlay Cemetery Ass'n, 270 Ill. 11, 110 N.E. 315, ‘Relief by injunction is so severe in its consequences that it is not to be granted in such a case except when the right to it is clearly and conclusively made out.’
In this way, the trial court, being confronted with the question of balancing the public health and safety, as defined in a statute and statutory regulations, against the claim of constitutional invasions, is placed in the position of weighing right against right. Where the party against whom the action is brought is a public officer acting within the framework of the statutory plan, which has been previously tested for its constitutionality, and the rights sought to be protected are alleged as conclusions, the damage or injury described appears relatively improbable of occurrence, and the interests of the parties plaintiff do not involve major invasions but are only those held by any member of the public, the complaint does not state a cause of action nor evidence plaintiffs' right to injunctive relief. Therefore, under the allegations of the complaint here I would affirm that the complaint does not set up circumstances under which the use of injunctive power is clearly justified.
The point involved is not only one of pleading, it is also one of the balance of constitutional rights. As was said in an earlier case from Madison County, Illinois, Spalding v. Granite City, 415 Ill. 274, 113 N.E.2d 567:
‘The constitutional guaranties that no person shall be deprived of life, liberty, or property without due process of law, and that no State shall deny to any person within its jurisdiction the equal protection of the laws, were not intended to limit the subjects upon which the police power of the State may lawfully be asserted in matters of health protection any more than in any other connection. It has been almost universally held in this country that the constitutional guaranties, including the prohibition of deprivation of property without due process, must yield to the statutes and ordinances designed to promote the public health as a part of the police powers of the State. ( People ex rel. Baker v. Strautz, 386 Ill. 360, 54 N.E.2d 441; People v. Anderson, 355 Ill. 289, 189 N.E. 338; City of Evanston v. Wazau, 364 Ill. 198, 4 N.E.2d 78.)’
Further, in The People ex rel. Baker v. Strautz, 386 Ill. 360, 54 N.E.2d 441, our Supreme Court said:
“Generally speaking, what laws or regulations are necessary to protect public health and secure public comfort is a legislative question, and appropriate measures intended and calculated to accomplish these ends are not subject to judicial review. The exercise of the police power is a matter resting in the discretion of the Legislature or the board or tribunal to which the power is delegated, and the courts will not interfere with the exercise of this power except where the regulations adopted for the protection of the public health are arbitrary, oppressive and unreasonable. The court has nothing to do with the wisdom or expedience of the measures adopted. People v. Weiner, 271 Ill. 74, 110 N.E. 870, L.R.A.1916C, 775, Ann.Cas.1917C, 1065; State v. Morse, 84 Vt. 387, 80 A. 189, 34 L.R.A.,N.S., 190, Ann.Cas.1913B, 218; State (ex rel. McBride) v. Superior Court, 103 Wash. 409, 174 P. 973.'
It has almost universally been held in this country that constitutional guaranties must yield to the enforcement of the statutes and ordinances designed to promote the public health as a part of the police powers of the State.'

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Schuringa v. City of Chicago

Illinois, Injunction, Due Process Violations, State police power

Plaintiff

Alice Schuringa

Defendant

City of Chicago

State

Illinois

Other Parties

-

Case Tags

- Injunction

- Due Process Violations

- State police power

Citation

30 Ill. 2d 504; 198 N.E.2d 326 (Ill. 1964)

Year

1964-01-01T00:00:00

Court Name

Supreme Court of Illinois

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Daily

Opinion Text

DAILY, Justice.
This suit, brought in the superior court of Cook County against the city of Chicago and certain of its officials, is a taxpayers' action to enjoin defendants from fluoridating the city's water supply. Because constitutional questions are involved, plaintiffs appeal directly to this court for review of a decree dismissing their complaint for want of equity. Upon leave granted, the Chicago Dental Society has filed a brief as amicus curiae in support of the decree.
The events leading to the action had their beginning on October 31, 1951, when a special committee of the city council was appointed to study water fluoridation from the point of view of public health. Public hearings were held as the result of which the committee concluded that fluoridation of water served to prevent dental caries, or tooth decay, and that it was in no way physically harmful, and recommended that fluorides be introduced into the city's water supply. Upon the basis of such study and recommendation, as well as an opinion of the corporation counsel that a fluoridation program would not violate constitutional or other legal rights, the council passed a resolution on June 16, 1954, declaring the fluoridation of the water supply to be in the interest of the public health and further providing, in part: ‘...hat steps for the introduction of fluoride in a concentration adequate for safety and in accordance with the regulations prescribed by the Illinois Department of Health be undertaken by the City of Chicago through its Department of Water and Sewers with the cooperation of the Chicago Board of Health by January 1, 1955.’ Thereafter, the program and its manner of execution and administration were approved by the Illinois Department of Health and it was set into operation on May 1, 1956.
It appears that the city water supply, taken from Lake Michigan, has a natural fluoride content ranging from approximately .04 to .15 parts to a million parts of water. Under the program fluoride is added at strategic control points in quantities sufficient to maintain in the entire city system an optimum fluoride level of 1.0 part per million parts of water. There is no question but that the city uses the most advanced, safe and sanitary methods to inject the fluorido into the supply, and it also appears that constant tests to determine fluoride content are performed both by the city and the State.
Shortly after the program went into effect, the plaintiffs, suing as taxpayers and users of the city's water system, brought this suit for injunctive relief. One plaintiff is a dentist in general practice, two are housewives and the fourth, Walter Olson, is a practicing member of a religious sect which rejects the use of material medicine and relies upon spiritual means alone for healing disease. The cause was referred to a master in chancery to hear the evidence. After prolonged hearings and upon consideration of a voluminous record, the master made three basic findings of fact: (1) that fluoridation reduces dental caries by sixty per cent in children up to fourteen years of age; (2) that fluoridation of one part per million parts of water will not cause mottled teeth; and (3) that fluoridation to such extent will not cause systemic physical harm to the population as a whole. On the basis of such findings, as well as his conclusions that no legal rights were violated, the master recommended that plaintiffs' complaint be dismissed for want of equity. After exceptions to the master's report had been considered and overruled, such a decree was entered. This appeal has followed.
Essentially, plaintiffs' contentions are that the master's findings of fact are either unsupported by the evidence or against the manifest weight thereof, that the legislative action in question is an unreasonable, arbitrary and unwarranted exercise of the police power, and that it infringes upon fundamental liberties protected by constitutional guarantees of due process of law. As to the plaintiff Olson it was contended below and in the brief filed in this court, that the fluoridation program was compulsory medication which violated the right to religious freedom guaranteed him by the first and fourteenth amendments to the Federal constitution. However, the latter issue, no stranger to the halls of justice in the setting here raised, (See: Dowell v. City of Tulsa, (Okla.1954,) 273 P.2d 859, 864, 43 A.L.R.2d 445, certiorari denied 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715; Readey v. St. Louis County Water Co. (Mo.1961,) 352 S.W.2d 622, 628,) has become moot and is no longer an issue in the appeal, under the circumstance that the plaintiff Olson has voluntarily withdrawn and obtained a dismissal of the appeal as it relates to him. It is axiomatic that this, court, unless the public interest demands it, will not consider abstract or moot questions, (cf. People ex rel. Lawrence v. Village of Oak Park, 356 Ill. 154, 190 N.E. 286; National Jockey Club v. Illinois Racing Comm., 364 Ill. 630, 5 N.E.2d 224,) and, moreover, the remaining plaintiffs are not injuriously affected by the operation of the legislation on such ground. Cf. Klein v. Dept. of Registration and Education, 412 Ill. 75, 87, 105 N.E.2d 758; City of Chicago v. Rhine, 363 Ill. 619, 626, 2 N.E.2d 905, 105 A.L.R. 1045.
The police power of the State is a basic attribute of sovereignty which exists without any special grant or reservation in the constitution, (Chicago Junction Railway Co. v. Illinois Commerce Comm., 412 Ill. 579, 107 N.E.2d 758; Berry v. City of Chicago, 320 Ill. 536, 151 N.E. 581,) and we may begin our consideration of the issues here raised with the statement of two elementary and undeniable principles. First, that the police power may be validly exercised in order to protect the public health, ( City of West Frankfort v. Fullop, 6 Ill.2d 609, 129 N.E.2d 682; People ex rel. Kerner v. Huls, 355 Ill. 412, 189 N.E. 346,) and that the State of Illinois, as it may lawfully do, has delegated to its municipalities the police power to protect the public health both generally (Ill.Rev.Stat.1963, chap. 24, par. 11-20-5), and specifically with respect to water systems. (Ill.Rev.Stat.1963, chap. 24, par. 11-139-8(2); see also: Gundling v. City of Chicago, 176 Ill. 340, 52 N.E. 44, 48 L.R.A. 230.) Equally settled and certain is the concept that a police measure, to be beyond the pale of constitutional infirmity, must bear a reasonable relation to the public health or other purpose sought to be served, the means being reasonably necessary and suitable for the accomplishment of such purpose, ( Strub v. Village of Deerfield, 19 Ill.2d 401, 167 N.E.2d 178, 83 A.L.R.2d 795; Vissering Mercantile Co. v. Annunzio, 1 Ill.2d 108, 115 N.E.2d 306, 39 A.L.R.2d 728; Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385,) and the principle that courts will not interfere with legislation falling within the orbit of a municipality's police power unless there is a palpably arbitrary or unfair exercise of the power. ( City of Chicago v. R. & X. Restaurant, 369 Ill. 65, 15 N.E.2d 725, 117 A.L.R. 1313; Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384, 29 N.E.2d 495.) The first issues thus confronting us are whether the fluoridation of water is so related to the public health as to constitute it a proper exercise of the police power, and whether fluoridation is reasonably necessary and suitable for the protection of the public health.
And while the matter is one of first impression in this jurisdiction, it is a question which has been the subject of much litigation in our time. In this country, on the occasions where the matter has been subjected to judicial scrutiny, there has been unanimous accord that the fluoridation of water by one part of fluoride to a million parts of water is a reasonable and proper exercise of the police power in the interest of the public health, and that it is not subject to constitutional infirmities thus far conceived. (See: Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142, certiorari denied 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701; Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609, certiorari denied 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463; Dowell v. City of Tulsa, (Okla.1954,) 273 P.2d 859, 43 A.L.R.2d 445, certiorari denied 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715; de Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98, certiorari denied 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135; Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242; Readey v. St. Louis County Water Co. (Mo. 1961), 352 S.W.2d 622; Baer v. City of Bend, 206 Or. 221, 292 P.2d 134; Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352; City Commission of City of Fort Pierce v. State ex rel. Altenhoff, (Fla.App. 1962,) 143 So.2d 879. Cf. Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W.2d 569.) On the other hand, we are told in plaintiffs' brief that the highest courts of Canada and Sweden have ruled against fluoridation, the former apparently concluding that such a program was beyond the statutory authority of municipalities, (Municipality of Metropolitan Toronto v. Village of Forest Hill, (1957) 9 D.L.R.2d 113,) and the latter apparently concluding, among other things, that there were possibilities of risk and disadvantage to health. (Association for Promotion of Health v. Town of Norrokopping, (Sweden, 1961.) The High Court of Dublin, Ireland, to the contrary, shares the American view to date that fluoridation of public waters is neither physically harmful nor legally improper. Ryan v. Attorney General, (1963.)
On approaching the factual issue of whether the fluoridation of drinking water by one part per million is reasonably related to and suitable for the protection of the public health, it may be said to be uncontradicted that dental caries, or tooth decay, presents a continuing and unsolved problem of general health on a national scale, and that it is a disease from which no community, level of society or age group is immune. Fluorides, in varying proportions, exist naturally in the water supplies of many areas and at a time in history we take to be around the early 1930's, it was discovered that dental experience was significantly different in such areas. Generally speaking, those differences were a lower percentage of tooth decay, and in some areas, an incidence of mottled teeth, or chronic endemic fluorosis. The result of these discoveries was extensive scientific study, research, testing and experimentation which ultimately laid the basis for the program of artificially fluoridating public drinking waters.
Reduced to their simplest terms, the general scientific conclusions reached were: that the ingestion of fluoridated waters results in a hardening of tooth enamel which makes for greater resistance to tooth decay; that the beneficial effects develop in the human body from birth through the ages of 12 to 14 years, being the period when the dentine and enamel of permanent teeth are being formed; that the protection acquired in the formative stages carries over into adult life; that the ingestion of fluorides in moderate amounts has no harmful effects on the human body; and that seriously mottled teeth occur only where excessive amounts of fluorides are ingested. Based upon these findings, and with the endorsement of various scientists, dental associations, health and medical groups, and governmental agencies, (e. g. the United States Department of Health and in our own jurisdiction the Illinois Department of Health,) many cities, starting in the early 1950's, began fluoridating public water supplies as a health measure.
As could be expected, however, artificial fluoridation has not been entirely free from sincere and conscientious objection on the part of some scientific and medical men, and proposals to pursue such a program have been expressly rejected in some communities. In the present case plaintiffs introduced evidence, largely through the medium of expert opinion, to the effect that the ingestion of fluorides has no appreciable effect upon the reduction of dental caries, or at least a doubtful and as yet undetermined effect; that it merely delays and postpones tooth decay rather than preventing it; and that the whole problem of tooth decay, as well as its solution, is a matter of diet and nutrition in which fluorides are neither necessary nor a factor. Defendants' expert witnesses, for the most part men with long and extensive experience in the actual research and testing which has gone into the scientific effort to determine the relationship between the fluoride content of water and dental caries, testified exactly to the contrary. According to their opinions fluoridation has and does result in a direct reduction of dental caries among children, and by fluoridating Chicago's water supply at a level of one part per million decay will be reduced in the permanent teeth of children by as much an 50 to 60% after a period of 10 years.
Fluoride is a toxic substance, which is not an essential element of the human body, and when introduced into the system by whatever means is in part absorbed and accumulated in bones and body tissues, as well as in the teeth. While conceding that the susceptibilities of the particular individual and the amounts of fluoride involved are factors, plaintiffs' experts were of the opinion that one of the long range effects of fluoridating public drinking water could be the development of chronic fluoride poisoning in a substantial number of citizens. Such a condition, they stated, would interfere with certain natural body processes as its primary effect, and as possible secondary effects could cause nausea, vomiting, constipation, diarrhea, changes in the hair, skin and nails, skin eruptions, abnormal bones and kideny stones. Additionally, they testified that damage would result to the kidneys, liver and other vital organs; that the nervous system would be directly and harmfully affected; that the spine would be affected; that loss of muscle power and altered reflexes would occur; and that the poisoning would interfere with reproduction, decrease fertility, decrease the mother's milk supply, increase still births and stunt growth. The classified diabetics, people susceptible to allergies, arthritics and women during pregnancy and menstrual periods as groups particularly sensitive to any intake of fluoride. One of the plaintiffs, a practicing dentist who examined only 16 to 18 young patients a year, testified that since the commencement of fluoridation of water in Chicago he had observed gum damage in the mouths of children. This was flatly contradicted by witnesses for defendants who examine thousands of children each year.
Based upon tests with animals, upon statistics relative to fluoride poisoning, upon tests and studies of the retention and excretion rate of fluoride in the human body, upon medical experience and upon a series of autopsies performed upon bodies of persons living where the water supply had a natural fluoride content of 2.5 parts per million parts of water, defendants' experts testified in essence that the lifetime consumption of water fluoridated by one part per million would have no harmful or adverse effects upon the human body, and were of the opinion that water fluoridated to such an extent could be safely ingested without cumulative toxic effect. More specifically, one defense witness testified that the ingestion of fluoride in such quantity and in such manner could not possibly have harmful effects upon bones, the kidneys, the heart or tissues of the body. According to another witness, only a small fraction of fluorides ingested is retained in the body, the greater portion being excreted naturally through the kidneys and sweat glands, and whenever the concentration of fluoride in the blood tends to rise the mechanisms which carry fluoride out of the blood also tend to increase their activity and to maintain a balance, unless overwhelmed by the sudden intake of large amounts of fluoride. In this connection, the witness stated that for the ingestion of fluorides to become dangerous a person would have to ingest at one time in the neighborhood of 1000 to 2000 times the amount that he could normally ingest in a day by drinking water fluoridated by one part per million.
On the subject of retention by the human body, a witness for plaintiffs testified there are variations from individual to individual, some retaining more than others, and it was his opinion that children who would retain the whole intake of fluoride from Chicago's water would be susceptible to ill effects as time progressed. Over defendants' objection, the same witness was permitted to testify to an uncompleted experiment he was conducting by injecting fluoride in a concentration of 6.8 parts per million, (for in excess of the optimum level maintained by Chicago,) into a group of 30 persons, 20 of whom were already afflicted with fluorosis and 10 of whom were ‘not suspected of fluorosis.’ According to his preliminary findings and report, the persons suffering from fluorosis excreted an average of 25.6% of the fluoride administered, while the others eliminated an average of 57.1%.
There was a similar division of evidence and opinion on the issue of whether fluoridation by one part per million would result in widespread chronic endemic fluorosis, or mottled enamel. This condition, which has its beginning from the effect of fluoride on the enamel-forming cells of the tooth bud, does not effect the tooth structurally or functionally but presents largely a problem of cosmetics or esthetics. Its incidence follows no fixed pattern, individual differences and other variables again apparently playing a part, and it may range from mild to severe cases and varying degrees in between. In its mildest form, detectable only by the trained eye, the tooth appears bleached or chalky white in its entirety or in spots. Later, in the progression to a severe case, the enamel tends to become pitted and stained yellow, brown or almost black. Also, it appears that, for the most part, the condition ordinarily occurs on surfaces which are not apparent from outside the mouth.
Generally, it was the testimony of defendants' experts that in order for mottled teeth to occur the intake of fluoride would have to be excessive, one witness stating the concentration would have to be above three parts per million; that no disfiguring or severe mottling would occur where there was a concentration of only one part per million; that instances of dental fluorosis had been few and far between in Chicago and other communities having a comparable program; and that a mottled tooth was preferable to a decayed tooth from the point of view of general body health. For the plaintiffs, an expert testified that 17% of the children drinking artificially fluoridated water from birth until they are old enough to have permanently erupted teeth will show some degree of mottled enamel, and a showing was made of statistical studies revealing the incidence of mottling, or suspected mottling, in communities where the natural fluoride content of their water supplies ranged from .2 to 1.2 parts per million parts of water. The statistician, however, who happened to be one of the expert witnesses for defendants, classified the cases of mottling as ‘mild’ or ‘very mild’ and, while we entertain some doubt as to the validity or consistency of his conclusion, testified in this cause that the statistical experience of other communities in this respect could not be projected to the city of Chicago.
We do not agree that the master's findings of fact are either against the manifest weight of the evidence, or in some instances without evidentiary support, as plaintiffs contend. A presumption of validity attaches to municipal enactments and regulations adopted under the police power and the burden of proving to the contrary is upon him who asserts the invalidity. ( Keig Stevens Baking Co. v. City of Savanna, 380 Ill. 303, 44 N.E.2d 23; Stearns v. City of Chicago, 368 Ill. 112, 13 N.E.2d 63, 114 A.L.R. 1507.) And while, as we have noted, such legislative action is generally subject to judicial review to determine whether it is related to and reasonably necessary and suitable for the protection of the public health, safety, welfare or morals, courts will not disturb a police regulation where there is room for a difference of opinion, but in such case the legislative judgment will prevail. ( McCray v. City of Chicago, 292 Ill. 60, 126 N.E. 557; Dunlap v. City of Woodstock, 405 Ill. 410, 91 N.E.2d 434.) Furthermore, the wisdom, necessity and expediency of police regulations are no concern of the courts, but are matters primarily for the legislative body of the municipality, and courts are without power to interfere merely because they believe a different regulation might have been wiser or better. City of Chicago v. Waters, 363 Ill. 125, 1 N.E.2d 396; Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384, 29 N.E.2d 495.
From all of the evidence in this record, as well as the scientific, professional and legal authorities which have been brought before us, there appears to be extraordinary accord that fluorides act to prevent and reduce tooth decay, and that artificial fluoridation to the extent of one part per million parts of water will not, either presently or cumulatively, result in harmful systemic effects. Apart from the extensive scientific research which led to these conclusions, equally impressive are the painstaking legislative inquiries at Federal, State and local levels which have preceded the endorsement and adoption of fluoridation programs. As we see it, the closest factual issue arises over the question whether artificial fluoridation, to the extent here involved, will in fact produce what could be described as harmful effects in the matter of mottled teeth. At best, however, the evidence with respect thereto presents only a debatable question where there is room for difference of opinion, and while it is our belief the proof is more susceptible to a conclusion that severe and disfiguring endemic dental fluorosis will not result from artificial fluoridation to the extent practiced here, it is enough to say it is an area in which the legislative judgment must prevail. We conclude that the artificial fluoridation of water is reasonably related to the public health, and that the program adopted by Chicago is necessary and suitable for the protection of public health.
Departing from considerations directly related to bodily health, plaintiffs also contend that the Chicago program is arbitrary and unreasonable because it is wasteful and because it is being administered in a ‘haphazard’ manner. We do not find that either point is well taken. The claim of haphazard administration is founded upon charts of daily tests which show that the fluoride content does not at all times measure at precisely one part per million parts of water, but fluctuates in varying degrees slightly above or slightly below that figure. However, further proof shows that the absolute perfection for which plaintiffs contend is not possible to achieve, that the city tries and usually does maintain the proportion of fluoride so there will be .95 parts per million parts of water, and that the amounts of fluoride ingested in those instances where the content slightly exceeds one part per million will not have present or cumulative harmful effects. We would add, too, it appears that the methods, tests and controls being employed to insure safety meet the highest standards.
The claim of a wasteful program arises from the fact that the program has had a capital outlay of roughly $500,000 and operational costs of about $350,000 a year, and from the circumstances that Chicago has but one system of pipes to distribute its water supply with the result that only a small fraction of the total fluoridated supply is actually ingested by the 6 to 14 age group it is intended to benefit. This, the plaintiffs urge, is a needless waste of public funds particularly in view of the alternate methods by which fluorides could be administered to children, as for example: by topical application, by pills dissolved in water, and by the use of fluoridated milk, mouthwash or toothpaste. There is, however, proof in the record that such alternative methods would not be as safe, economical and effective as the fluoridated water program, that they would not effectively accomplish the widespread public purpose of the program, that the only practical method of employing the beneficial effects of fluoride is by treating drinking water, and that the public expense and apparent waste of a part of the fluoridated water supply is more than offset by the beneficial results to be attained. Taking into account all of the circumstances, particularly the purpose of benefitting the entire population, we cannot say that the program is unreasonable or arbitrary on such ground. Cf. Readey v. St. Louis County Water Co. (Mo.1961,) 352 S.W.2d 622, 632; Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609, 612.
Finally, plaintiffs assert that the program is an improper exercise of the police power because tooth decay is not a communicable or epidemic disease; because only a small segment of the population, the city's children, are benefited; and because its subjects all users to mass medication in violation of the fundamental and inalienable right of each individual to determine whether or not they wish to be so treated. These constitutional claims have both their source and their unanimous rejection in the decisions of our sister States, heretofore cited, which have treated upon the problem and we see no useful purpose in a detailed analysis or repetition of the grounds for rejection. Suffice it to say that those well-reasoned precedents, with which we are in accord: (1) sustain the right of municipalities to adopt reasonable measures to improve or protect the public health, even though communicable or epidemic diseases are not involved; (2) hold that the benefits of fluoridation which carry over into adulthood absolve such programs of the charge of being class legislation; and (3) conclude that fluoridation programs, even if considered to be medication in the true sense of the word, are so necessarily and reasonably related to the common good that the rights of the individual must give way. Cf. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643.
Two collateral issues remain to be considered. First, the contention of plaintiffs that the exercise of the police power here is invalid because it was accomplished by resolution rather than by ordinance; and second, the contention of defendants on cross appeal that the trial court erred in apportioning half of the master's fees and charges to the city of Chicago. We do not find, however, that the first issue was ever raised or passed upon in the trial court, with the result that it is not properly before us for review and will not be considered. ( Pickus v. Board of Education, 9 Ill.2d 599, 138 N.E.2d 532; Zehender & Factor, Inc. v. Murphy, 386 Ill. 258, 53 N.E.2d 944.) As to the second, it is axiomatic that the assessment and apportionment of fees and costs rest in the sound discretion of the trial court, ( McFail v. Braden, 19 Ill.2d 108, 166 N.E.2d 46; Jones v. Felix, 372 Ill. 262, 23 N.E.2d 706;) and we perceive no abuse of discretion in this case. While the judicial view of artificial fluoridation has since become crystallized and fixed along discernible lines, the complaint filed in this proceeding, which has been unduly prolonged, reflects generally upon a time when the constitutionality of such programs was uncertain and when the bona fides of plaintiffs' action could not seriously be contested.
The decree of the superior court of Cook County was correct and is therefor affirmed.
Decree affirmed.

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Teeter v. City of LaPorte

Indiana, Unlicensed Practice of Medicine/Compulsory Medication

Plaintiff

Teeter, et al.

Defendant

Municipal City of LaPorte, et al.

State

Indiana

Other Parties

-

Case Tags

- Unlicensed Practice of Medicine/Compulsory Medication

Citation

236 Ind. 146; 139 N.E.2d 158 (Ind. 1956)

Year

1956-00-00T00:00:00

Court Name

Supreme Court of Indiana

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Emmert JA

Opinion Text

EMMERT, Justice.
This is an appeal from a judgment for appellees upon failure of appellants to plead over after a demurrer had been sustained to an amended complaint for injunction.
The amended complaint sought to enjoin appellees, defendants in the trial court, from adding fluorides to the water supplied by the municipal waterworks, to declare void Section 27 of Ordinance 948 enacted by the Common Council of the City of LaPorte in March, 1951. The questioned section reads as follows:
‘The Municipal waterwords of the City is hereby authorized to add Fluorides to the water for the purpose of reducing dental caries. And the Board of Public Works and Safety of the City is hereby authorized to purchase from the revenues of the waterworks the necessary Fluorides to be added, as well as any equipment to properly add such Fluorides to the water distributed by the municipal waterworks.’
There was no motion filed by the defendants to make the amended complaint more specific,FN1 and when such a complaint is tested by demurrer all intendments are taken in favor of the pleading. 1 Lowe's Work's Ind. Practice § 14.39, p. 565; Rochester Bridge Co. v. McNeill, 1919, 188 Ind. 432, 439, 122 N.E. 662; Domestic Block Coal Co. v. De Armey, 1913, 179 Ind. 592, 100 N.E. 675, 102 N.E. 99; Vandalia Coal Co. v. Coakley, 1915, 184 Ind. 661, 111 N.E. 426; Lincoln Operating Co. v. Gillis, 1953, 232 Ind. 551, 558, 114 N.E.2d 873. See also State ex rel. Tittle v. Covington Community Consolidated Schools, 1951, 229 Ind. 208, 214, 96 N.E.2d 334.
FN1. There was no motion filed to make the amended complaint more specific under § 2-1005, Burns' 1946 Replacement. There was a motion filed to require the plaintiffs to show by what authority the action was brought on behalf of a certain religious organization and on behalf of the LaPorte Committee Opposed to Fluoridation. The amended complaint omitted all reference to the religious organization.
The amended complaint attempted to plead a class action under § 2-220, Burns' 1946 Replacement, by alleging:
‘1. That these plaintiffs are all citizens of the United States of America and the State of Indiana, residing in LaPorte, Indiana, and bring this action to assert their said rights of citizenship on behalf of themselves and for all others of the class of such citizens residing in LaPorte, Indiana, and entitled to assert their rights of citizenship.
‘2. That plaintiffs are all resident taxpayers of the Municipal City of LaPorte, Indiana, and bring this action on behalf of themselves in their capacity as said taxpayers and on behalf of all others of said class residing in said City of LaPorte, Indiana.
‘3. That plaintiffs are all users of water supplied by the City Water Works, a utility operated by the Municipal City of LaPorte, Indiana, and bring this action in their capacity of said water users and on behalf of all persons in said class residing in said City and using such water supplied by such public utility.
‘4. That certain of the plaintiffs are opposed to the enforced use of medicinal properties and ingredients on religious scruples.
‘5. That all of the plaintiffs are members of an association known as the LaPorte Committee Opposed to Fluoridation representing an organization of approximately 3,000 persons, all residents of the City of LaPorte, Indiana, who are opposing and have expressed their opposition to the use of Fluorides in the water supplied by the Municipal City of LaPorte through its said Public Water Works, and they being this action in their capacity as members of such committee and organization and on behalf of the entire membership of such organization.’
It is not necessary to summarize all the facts and contentions asserted by the complaint, but among other averments it alleged:
‘27. That the toxic qualities of fluorines affect the health and physical condition of different persons in various manners, some being peculiarly allergic to same, and to require the entire population of said city to ingest them, particularly when artificially and mechanically added, would have a cululative [cumulative] toxic effect, particularly upon the aged, the ill, and those suffering from chronic physical ailments, particularly cancer.’
It also alleged violation of the constitutional rights, as set out in the note. FN2
FN2. ‘33. That said ordinance violates Amendment I to the Constitution of the United States in that it prohibits the free exercise of religious scruples, by such persons who on account of such scruples are opposed to medication.
‘34. That it violates Amendment XIV to the Constitution of the United States in that it abridges the privilege and immunities of citizens of the United States and deprives them of certain liberties, in that it becomes an enforced method of taking drugs and giving same to their children, in water and food, whereas each individual should have the right to determine what to drink and eat without dictation from others, whether they be individuals or municipalities.
‘35. That on account of its restriction to freedom of the individual, it is in violation of the Indiana Bill of Rights.’
The first cause of the demurrer was on the ground there were several causes of action improperly joined. Section 2-1009, Burns' 1946 Replacement, provides, ‘No judgment shall ever be reversed for any error committed in sustaining or overruling a demurrer for misjoinder of causes of action.’ The preceding section requires the court, upon sustaining a demurrer for misjoinder of causes of action, to note the misjoinder on the order-book, and cause separate actions to be separately docketed. Since there is no order-book entry showing this, we must presume the demurrer was not sustained for misjoinder of causes.
The second ground of the demurrer was for failure to state facts sufficient to constitute a cause of action. We do not deem it necessary to consider all the reasons and arguments cited in the memorandum to the demurrer in support of this ground. There is nothing in the memorandum whereby we would be authorized to hold that rhetorical paragraph 27 of the amended complaint is untrue as a matter of law. We do judicially know many cases have decided that fluoridation of public water supply is a reasonable exercise of the police power. Baer v. City of Bend, 1956, 206 Or. 221, 292 P.2d 134; Kraus v. City of Cleveland, 1955, 163 Ohio St. 559, 127 N.E.2d 609, appeal dismissed 1956, 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463; Froncek v. City of Milwaukee, 1955, 269 Wis. 276, 69 N.W.2d 242; Dowell v. City of Tulsa, Okl.1954, 273 P.2d 859, certiorari denied 1955, 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715; Kaul v. City of Chehalis, 1954, 45 Wash.2d 616, 277 P.2d 352; Chapman v. City of Shreveport, 1954, 225 La. 859, 74 So.2d 142, appeal dismissed 1954, 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701; De Aryn v. Butler, 1953, 119 Cal.App.2d 674, 260 P.2d 98, certiorari denied 1954, 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135. Only one of these cases was an appeal from a judgment on a demurrer, and there were admissions made by counsel in an oral argument and it does not appear the complaint alleged fluoridation had toxic effects. FN3
FN3. ‘Although there is no direct benefit to adults, it is not alleged, nor is it contended, that the consumption of water so treated is harmful to them or anyone else. The concessions of counsel for the plaintiff to which we have referred only harmonize with scientific findings reflected in the opinions of the courts which have been called upon to consider constitutional challenges to similar legislation.’ Baer v. City of Bend, 1956, 206 Or. 221, 223, 224, 292 P.2d 134, 135.
We have been cited to numerous scientific articles by appellants and appellees, but under the present state of scientific experience and opinion we do not feel we are in a position to hold conclusively as a matter of law fluoridation will not have cumulative toxic effects. If it does, such will be a matter of proof by the plaintiffs in the trial court when the issues are tried there. If there should be conflicting evidence on this issue the trial court is in a position to weigh it, and we are not.
It is not necessary to decide the constitutional issues at this stage of the proceeding, since anything we might decide now would be without proof first had in the trial court.
Judgment reversed with instructions to overrule the demurrer and for further proceedings consistent with this opinion.
ACHOR, C. J., and ARTERBURN, BOBBITT and LANDIS, JJ., concur.

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Wilson v. City of Council Bluffs

Iowa, Abuse of Municipal Authority, State police power

Plaintiff

C.L. Wilson

Defendant

City of Council Bluffs

State

Iowa

Other Parties

Resident taxpayers and users of the public water supply of City of Council Bluffs

Case Tags

- Abuse of Municipal Authority

- State police power

Citation

253 Iowa 162; 110 N.W.2d 569 (Iowa 1961)

Year

1961-00-00T00:00:00

Court Name

Supreme Court of Iowa

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Hays J

Opinion Text

HAYS, Justice.
This is a class action wherein plaintiffs, as residents and taxpayers of the City of Council Bluffs, Iowa, seek to enjoin the enforcement by said City of an ordinance, known in the record as Ordinance No. 3575, providing for flouridation of water furnished to residents of said city through its municipal water works. Such relief was granted by the trial court.
Ordinance No. 3575, after setting forth at some length a list of national, state and local medical, dental and health associations and boards which have endorsed the use of fluorides in water as a health measure, provides: Section I. ‘That fluoride shall be introduced into the public water supplies of the city of Council Bluffs, Iowa in such concentration as is recommended by the Iowa State Department of Health; provided, however, that fluoridation equipment and the installation and operation thereof shall at all times be subject to the inspection, rules, regulations and direction of said Department of Health...’
A pre-trial stipulation provided: (1) No issue is raised as to plaintiff's authority to maintain the action. (2) It is conceded that the fluoride to be added to the water will not purify the water or make it more potable and that it is not being added for that purpose. (3) No issue is raised as to whether or not the city council was duly advised upon the question of whether or not the adding of fluoride to the water will be beneficial or detrimental to the users. (4) No issue is raised as to whether or not the fluoride will prevent dental caries, or whether or not the city acted arbitrarily or abused its discretion in making its determination in that respect. (5) No claim is made that the fluoride will make the water less potable or less pure. (6) This stipulation permits urging that the addition of fluoride by the City violates Chap. 205, Code 1958, I.C.A. (7) No issue is raised concerning the amount of fluoride the city intends to add to the water or that it exceeds the amount recommended for the purpose of accomplishing the reduction of dental caries.
Under the pleadings and in the light of above mentioned stipulation, but two legal questions were before the trial court for determination: (1) Statutory authority of the City to enact said Ordinance; and (2) Violation of Chapter 205, Code 1958, I.C.A. The trial court held the City had no statutory authority, express or implied, to enact the ordinance, but that, assuming such authority, the ordinance did not violate Chap. 205. Appellant assigns error in the holding of no authority. Appellees urge in support of the decree, error as to the holding relative to Chap. 205, Code 1958, I.C.A.
I. The law is clear and well established in this State that municipalities have only those powers, expressly given them by the legislature, those which arise from fair implication and those necessary to carry out powers expressly or impliedly granted. Also, such grants of power are strictly construed against the authority claimed, and in case of reasonable doubt must be denied. Dotson v. City of Ames, 251 Iowa 467, 101 N.W.2d 711, and authorities therein cited. The law is equally well established that where a general statute, if standing alone, would include the same matter as a special statute and thus conflict with it, the special statute will be considered an exception to the general statute whether it was adopted before or after the general statute. Gade v. City of Waverly, 251 Iowa 473, 101 N.W.2d 525, and cited authorities.
II. Four sections of the code appear to be pertinent to the issue of authority to enact the Ordinance in question.
Section 366.1. ‘Municipal corporations shall have power to make and publish, from time to time, ordinances, not inconsistent with the laws of the state, for carrying into effect or discharging the powers and duties conferred by this title, and such as shall seem necessary and proper to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort, and convenience of such corporations and the inhabitants thereof, and to enforce obedience to such ordinances by fine not exceeding one hundred dollars, or by imprisonment not exceeding thirty days.’
Section 368.2, provides in part: ‘Cities and towns are bodies politic and corporate, ...and shall have the general powers and privileges granted, and such others as are incidental to municipal corporations..., not inconsistent with the statutes of the state, for the protection of their property and inhabitants, and the preservation of peace and good order therein,... .’
Section 397.1, ‘Cities and towns may purchase. Cities and towns shall have the power to purchase, establish, erect, maintain, and operate within or without their corporate limits... waterworks,..., with all the necessary reservoirs, mains, filters, streams, trenches, pipes, drains, poles, wires, burners, machinery, apparatus, and other requisites of said works or plants, and lease or sell the same’.
Section 397.26 Jurisdiction of City. ‘For the purpose of maintaining and protecting such works or plants from injury, and protecting the water of such waterworks from pollution, the jurisdiction of such city or town shall extend over the territory occupied by such works, and all reservoirs, mains, filters, streams...and other requisites of said works or plants used in or necessary for the construction, maintenance, and operation of the same, and over the stream or source from which the water is taken for five miles above the point from which it is taken.’
III. The trial court held there was nothing in Section 397.1 or Section 397.26 in any way authorizing fluoridation. We agree. We might also add that nowhere in the briefs and arguments do we find any contention of express authority. The trial court also held, in effect, these two statutes were special ones in relation to water supplies as against the general powers of municipal corporations. We do not agree with this premise. True they are special statutes dealing with one phase of water supplies, but that phase deals entirely with the power of the city to own and operate such a business or utility. It deals only with the physical aspects, of such a utility and has nothing to do with the manner in which it is operated or the type, character or ingredients of the product produced and sold other than, perhaps, that it be water. Neither 397.1 nor 397.26 conflicts with 366.1 or 368.2. Such cases as Mason City v. City of Zerble, 250 Iowa 102, 93 N.W.2d 94; Gade v. City of Waverly, 251 Iowa 473, 101 N.W.2d 525, supra; Shelby County Myrtle Memorial Hospital v. Harrison County, 249 Iowa 146, 96 N.W.2d 104; Leighton Supply Co. v. City Council of Fort Dodge, 228 Iowa 995, 292 N.W. 848, are not in point.
IV. There can be no question under this record and the stipulation but that the city acted, in good faith and after due deliberation, under its, at least supposed, power in Sections 366.1 and 368.2, above set forth. More specifically, the ordinance itself shows it as deemed to be a health measure enacted under that part of Section 366.1 which is as follows: ‘...and such as shall seem necessary and proper to provide for the safety, preserve the hoalth...of ...the inhabitants thereof... .’ (Italics ours.) It is a ‘police power’ enactment.
‘Police power’ is a general term containing many ramifications and has never been pin-pointed as to its exact meaning. City of Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 184 N.W. 823, 188 N.W. 921, 23 A.L.R. 1322. No one contends that the matter of the public health is not a proper subject of the police power or that such power has not been specifically delegated to cities and towns coextensive with their corporate limits. Cecil v. Toenjes, 210 Iowa 407, 228 N.W. 874. The trial court recognizes such facts but holds the addition of fluorides to the public water supply is not an authorized attribute thereof. It bases this holding primarily upon the stipulation that the only purpose of adding fluorides is on the theory that it will prevent dental caries in children; and that dental caries is neither a contagious nor an infectious disease.
The trial court concedes the right of a city to enact health regulations such as are intended to overcome contagious or infectious diseases on the theory that it is for the benefit of the community as a whole rather than those who are actually affected therewith. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643. There is nothing in the cited case prohibitive of ‘aiding a segment of the whole’ rather than ‘aiding the whole’, if the aiding is in fact a health measure, nor have we been cited any such a holding. See City of Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 184 N.W. 823, 188 N.W. 921, 23 A.L.R. 1322. It is clear that the city considered it to be a health measure. Under the stipulation no claim is made that the city acted hastily or arbitrarily in enacting the ordinance, nor is there any issue as to whether it is or is not beneficial or detrimental as a health adjunct. The merits of fluoridation are not in issue, only the authority or the lack of authority in the city to enact such an ordinance. We hold it has such authority, not in specific words but necessarily implied under Sections 366.1 and 368.2, Code 1958, I.C.A. See Annotation 43 A.L.R.2d 453, 459 and authorities therein cited. While appellees argue an invasion of personal liberties guaranteed by the State and Federal Constitutions, no such issue is raised by the pleadings; was not before the trial court and will not be considered here. In re Estate of Lundgren, 250 Iowa 1233, 98 N.W.2d 839.
V. Appellees contend in support of the decree that the court erred in holding that the ordinance was not in violation of Chapter 205, Code 1958, I.C.A., and hence void. This may be done without a cross appeal. Brandt v. Schucha, 250 Iowa 679, 96 N.W.2d 179.
Chapter 205 deals with the sale and distribution of poisons. Section 205.5 specifically prohibits any person except a licensed pharmacist from selling at retail any of the poisons listed therein. Included in this list is sodium fluoride. It may be assumed that sodium silicofluoride, the ingredient the city proposes to inject into the water, is included in the fluoride prohibition. The record shows that the fluoride concentration of the water, after the injection thereof, is 1.2 parts to one million p. p. m., which is in accord with the rules and regulations of the State Department of Health of Iowa. It also appears that much of the water in Iowa has, in its natural state, a fluoride concentrate equal to or in excess of that involved here. It is also stipulated that no claim is made that the fluoride will poison the water or that it will make it less pure or potable.
It is clear that the purpose of Section 205.5 is to regulate and restrict the retail sale of poisons as such. Conceding that the City of Council Bluffs is engaged in the sale at retail of water, the fact that such water may have a concentrate of fluoride of 1.2 to one million p. p. m., either naturally or due to action by the city, cannot under any reasonable theory be held to be a sale at retail of fluoride within the meaning of Section 205.5. Nicotine is also included in the prohibition found in said Section yet we doubt that any one would seriously contend that the sale of a package of cigarettes, we take judicial notice of the fact that cigarettes contain nicotine, was a sale of nicotine within the meaning of such statute. We can see no difference in the sale of water which contains fluoride as set forth in this record. The trial court was clearly correct.
For the reasons above stated the decree of the trial court should be and is reversed and plaintiffs' petition dismissed.
Reversed.
All Justices concur.

EDWARD P. HILL, Judge.
The judgment from which this appeal is prosecuted enjoins the fluoridation of the water system in Somerset, Kentucky, and adjoining area. We reverse the judgment. The questions herein presented have not heretofore been presented or decided by this court, although fluoridation of public water supplies has been in operation in Newburgh, New York, and Grand Rapids, Michigan, since 1945. Maysville, Greensburg, and Louisville in 1951 were the first Kentucky cities to fluoridize their water supplies.
This suit was filed by appellee, Christopher B. McNevin, a doctor of chiropractic in Somerset, against M. G. Graybeal and Kentucky Water Service Company. Later the Kentucky State Board of Health was permitted to intervene.
In May 1966, the State Board of Health, acting pursuant to KRS 211.090(1)(d) and 211.180, adopted an amendment to Regulation C-NEG-2, Fluoridation of Public Water Supplies, by which cities of the first four classes are permitted to ‘adjust deficient waters to an optimum fluoride content for the protection of the dental health of the people served by the supply.’
The regulation provided that approval by the Department of Health was made contingent upon provision by the supplier of fluoridation insuring adequate control and supervision and safe operation and maintenance. Requirements as to equipment, facilities, and service were rigidly prescribed, covering reliable feeding equipment and the rate of feed, protection of operators, separate storage of the fluoride chemical, laboratory facilities, testing and sampling and the submission of samples to the department. Other safety provisions were embodied in the regulation.
Memoranda were issued to mayors and water plant superintendents, including those of Somerset, advising them that the water systems of those cities in which fluoridation was not installed within six months would be classified as ‘provisional’ in lieu of the ‘approved’ rating existing before the adoption of the regulation, which according to appellee amounted to the approval of fluoridation and a downgrading of the water system of those not complying with the regulation.
The regulation fixed the ‘optimum fluoride content’ of public water supplies to be achieved by the regulation to be one-part fluoride per one-million parts of water.
The Somerset water system, built in 1957, included a separate room and some facilities for fluoridation in anticipation of future use.
On January 23, 1967, the city council of Somerset adopted a resolution requesting appellant Kentucky Water Service Company to ‘install as soon as possible’ the necessary equipment to introduce fluoride into the city water system. This company has been the supplier of public water in Somerset since 1957.
Appellee questions the validity of the regulation referred to above by charging that the regulation (1) is in violation of KRS 315.020, regulating the dispensing of drugs; (2) violates his ‘right to freedom of religion’; (3) violates his rights under section one of the Fourteenth Amendment to the Constitution of the United States; (4) is ‘arbitrary and in violation of section two of the Constitution of Kentucky.’ He further asserts that he had no opportunity to be heard and we denied due process; and that the proposed action by the city will do incalculable harm to his health, to the health of his family, and to other consumers.
After a lengthy trial by the court without a jury, the trial court fully agreed with plaintiff and granted the permanent injunctive relief sought. The State Board of Health and the Kentucky Water Service (hereinafter Water Service) have appealed. Fluoridation had been commenced February 10, 1967, but was discontinued by the injunction herein on April 7, 1967.
By Chapter 211 of KRS the legislature has wisely recognized and declared that the public health is an ‘essential function’ of the government of this Commonwealth. KRS 211.005. ‘The relation of dental hygiene to the health of the body generally is now so well recognized as to warrant judicial notice.’ See Dowell v. City of Tulsa, Okl., 273 P.2d 859, 43 A.L.R.2d 445 and KRS 211.180.
The State Board of Health is empowered to ‘adopt rules and regulations.’ KRS 211.090(1)(d).
Among the police powers of government, the power to promote and safeguard the public health ranks at the top. If the right of an individual runs afoul of the exercise of this power, the right of the individual must yield.
The State Board of Health is composed of ten members, including the Commissioner of Health. One member must be a registered pharmacist, one a licensed dentist, one a licensed osteopath, and the remaining six members shall be ‘licensed medical physicians.’ It is a regulation of this board in the field of fluoridation, a medical-scientific field, that appellee McNevin petitions the court, composed of men of law, not medicine or science, to set aside and hold for naught.
The general rule in regard to judicial review of rules and regulations of administrative agencies is thus stated in 42 Am.Jur., Public Administrative Law, s 209:
‘In general, in the absence of valid statutory provisions or other factors affecting the scope and extent of judicial review, administrative determinations will not be interfered with by the courts unless, but will be interfered with where, the determination is beyond the power which could constitutionally be vested in or exercised by an administrative authority; the determination is without or in excess of the statutory powers and jurisdiction of the administrative authority, the determination is an exercise of power so arbitrary or unreasonable as virtually to transcend the authority conferred, or is otherwise an abuse of discretion, or is in disregard of the fundamental rules of due process of law, as required by constitutional or statutory directions...made... .’
This general rule of judicial review may not apply with equal force to a regulation by an agency composed of specialists in an area in which the courts must acknowledge a limited understanding. Speaking in this vein, it was written in Hutchinson vo City of Valdosta, 227 U.S. 303, at page 307, 33 S.Ct. 290, at page 292, 57 L.Ed. 520 that:
‘It may be that an arbitrary exercise of the power could be restrained, but it would have to be palpably so to justify a court in interfering with so salutary a power and one so necessary to the public health (sewer control).’ (Emphasis added)
See also 2 Am.Jur.2d Administrative Law, s 633, from which we quote the following:
‘Perhaps the most significant factor limiting review by the courts of action of administrative agencies generally, although undoubtedly variable in degrees appropriate to particular agencies, is the scope of the power which has been reposed in the administrative agency by statute and the informed and expert judgment of the agency based upon its accumulated experience in the matters with which the statute is concerned. Courts often advert to the expertness, special competence, specialized knowledge, or experience of the administrative agency which fortifies the judgment of the agency... .’
As the issues were presented in the trial court, the power of that court was limited to a determination of whether the regulation in question was arbitrary or in violation of appellee's constitutional rights in the particular respects pointed out by appellee. On the issue of arbitrariness, the burden was on the plaintiff to show that the regulation had no reasonable basis in fact or had no reasonable relation to the protection of the public health. The consitutional question was one of law. Probably the true test of arbitrariness would depend on the evidence the board had before it when it adopted the resolution. But the parties went beyond this test and proceeded to offer evidence in circuit court, so we consider the case as practiced.
We must look to the facts in this record and the facts before the board when it adopted the requlation to determine whether the finding of the trial court of arbitrariness is ‘clearly erroneous.’ CR 52.01. Necessarily this will be a lengthy process due to the importance we attach to the qualification of the witnesses.
We first discuss appellants' witnesses and their evidence.
Dr. Russell E. Teague has been Commissioner of Health in Kentucky since 1956, and is a member of the State Board of Health. He has been with the State Department of Health since 1930 except for a one-year leave to earn a master's degree in public health and epidemiology at Johns Hopkins. He was president of the American Association of State and Territorial Health Commissioners in 1967.
Dr. Teague testified that of Kentucky's 3,000,000 population the number served by public water supplies is 1,800,000, and out of this number some 1,200,000, or 64 percent, drink water containing fluoride; that extensive studies and tests were made preceding the use of fluoridation in this state. The first test showed dental defects in 90 percent of the school children. After 10 years' use of fluoride, these tests showed a 90-percent reduction in dental defects in school children; that recent tests in Louisville, Maysville, and Ashland showed similar results; that significant benefits also accrue even where availability of fluoride is deferred to later years, and these benefits continue into and through old age; that there is substantial evidence that controlled fluoridation produces stronger bone structure, beneficial to older people. Dr. Teague testified that modern fluoride equipment is safe and presents no health problem and that proper fluoridation ‘does not in any sense produce harm to the health of the people.’
Nick G. Johnson, Director, Sanitary Engineering Program, Division of Environmental Health, State Department of Health, is responsible for enforcement of public water supply regulatory measures. He has a bachelor's degree in civil engineering from the University of Louisville, and a master's degree in sanitary engineering from the University of Michigan. He has been with the Department of Health for 20 years. He testified that all requirements and specifications of the regulation were fully met, both as to equipment and management personnel.
Dr. M. A. Shepherd is the Regional Medical Director, Central Region (embracing 20 counties), State Department of Health. He is a physician with 12 years' experience in this work with headquarters in Somerset. He practiced medicine there before his association with the Department of Health. He stated that there was a great demand by the citizens of Somerset for fluoridation. He said:
‘As a public health physician certainly it has been my duty to research the literature in the field of public health and I have read extensively in the literature etc., there has been no documented evidence of any danger or any damage done from using fluorided public water. ...Every national health organization in the United States that speaks with authority on the benefits and safety of fluoridation has adopted policies favorable to the meansure. ...They...(include) the American Dental Association, American Medical Association, American Association of Public Health Dentists, Association of State and Territorial Dental Directors, Association of State and Territorial Health Officers, National Research Council, U.S. Public Health Service, American Association for the Advancement of Science, American Academy of Pediatrics, Commission on Chronic Illness, Inter-Association Committee on Health, American Society of Denistry for Children, American Public Health Association, American Academy of Dental Medicine, Canadian Dental Association, Canadian Medical Association, Canadian Public Health Association, International Dental Federation, American Pharmaceutical Association, National Congress of Parents and Teachers, American Federation of Labor and Congress of Industrial Organizations, American Legion, U.S. Junior Chamber of Commerce.’
Dr. E. D. Gernert has the D.M.D. and M.P.H. degrees. He is professor of community dentistry, University of Louisville, and was Director of Dental Health, State Department of Health, until 1967.
Dr. Gernet testified he has closely followed the development of fluoridation since 1945 and studied the various tests and research on the subject; that he participated in various studies himself; that he and his associates ‘accumulated base line statistics on the condition of children's mouths and...took a mortality and morbidity rating on these communities' (Maysville, Greensburg, and Louisville) and that they followed these studies periodically; that they ‘found that when the children had full benefits of fluoridation from birth on there was a 60% reduction in tooth decay.’ That there was ‘no evidence of any impairment to health in these children from the study of the morbidity and mortality rates.’
Dr. Gernert further stated:
‘Long before 1945 when Newburgh, New York, was fluoridated, we were certain there was no detriment to health from fluoride in the diet or water, and the question at that time was whether we could actually put the fluoride in and control it without too much expense and too much difficulty. Of course, the Newburgh studies and the Grand Rapids studies, and others assured us that this could be done. Extensive studies in Newburgh, New York, health study of the general health of the patient, blood studies, bone studies, X-ray studies and everything else were conducted during this procedure or method of fluoridation, so that long before 1951 when we advocated fluoridation for communities in Kentucky, in my opinion there was no question as to the safety of the procedure, and this has been borne out by sixteen years of experience in fluoridation in community water supplies in this state.’
He also stated that fluoridation process does not constitute the dispensing of drugs or medicine; that fluoridation is not a medication, it is a ‘nutrient which produces stronger teeth and bones'; that fluoridation is ‘one of the great discoveries of our time’; and that it ‘is safe.’
A. B. Coxwell, D.M.D., is executive secretary of the Kentucky Dental Association and has practiced dentistry for 20 years. He testified that the House of Delegates of the Kentucky Dental Association passed a resolution ‘demanding that the State Board of Health take action to see that the water system of the State of Kentucky be adequately fluoridated’; that ‘every known accredited organization in the world has approved the fluoridation of water supplies for the prevention of dental caries'; that he had never seen ‘any evidence of any harm done to any one’ due to fluoridation.
Dr. Pat H. Lyddan, a pedodontist, with a D.D.S. degree, has served as president of the Kentucky Dental Association, and as an instructor in children's dentistry at the University of Louisville for 22 years. Dr. Lyddan gave this answer to a question as to his experience:
‘After the water was fluoridated in Louisville, within two or three years after the water was fluoridated, we began to see in our practice and this was not only true in our practice and this was not only well, I will get to that in a moment, the nature of my practice changed remarkably. Up until that time we were fighting a losing battle just to be able to restore all the decaying teeth, and in a period of about three years our practice changed to one where we were able to do more preventive dentistry, or what we call interceptive dentistry or preventive dentistry and to educate the parents, and also the patients to try to prevent tooth decay, due to the fact that we had this 60% reduction in decay, because of fluoridation of our local water supply. Also in addition the American Society of Dentistry for Children made a study of pedodontics all over the country, and in areas where the water was fluoridated, the result bore out the statement that I made, that all of us who practice in fluoridated areas, that our practice changed from 80 or 90 percent restorative dentistry, or trying to restore and fill the decayed teeth, to something like 60% of our practice became more or less a maintenance and preventive type of practice.’
When asked as to whether he knew of any harm due to fluoridation, he said:
‘No, I have not. In addition during the war I lived in a community in Texas where the water contained from 2 1/2 to 3 1/3 parts fluoride, naturally, and in addition to not having very much cavities, the general health of all the people in this community was excellent.’
Dr. Alvin L. Morris has the D.D.S. and Ph.D. degrees and has been Dean of the University of Kentucky College of Dentistry since 1961. He gave this answer as to the effect of fluoridation:
‘It is the responsibility of the Dean to serve as the major administrative officer of the academic institution, also to engage in instruction and some research. ... The evidence is overwhelming that water containing one part per million of fluoride will result in the reduction of new cavities developing in children to the extent of approximately 60 per cent. During my past experience in academic life I have had the privilege of serving as a colleague for three years with Dr. Harold Hodge, and Dr. Frank Smith, of the University of Rochester. These gentlemen have been responsible for doing the major research relative to the benefits of fluoride on biologic tissues. Their research, which was taking place during the time I was working with them revealed unequivocally that there would be no detrimental or harmful effects to the health of anyone consuming a water supply containing one part per million. Their research has been regarded as the key work, and the earliest work for establishing this fact on an experimental basis. Since that time, the experience with some 63 million Americans who have been and are drinking public water supplies with fluoride added to these amounts has completely substantiated their research.’
Dr. D. L. Gambrall, D.M.D., M.P.H., is Acting Director, Dental Health Program of the State Department of Health. His M.P.H. degree is from the University of Michigan. He stated:
‘During my first year with the State Health Department I was in the clinical program. In this program we provided care to children throughout the state, indigent children, mostly. In many areas I worked on children who did not have the benefit of fluoridated water. The prevalence of caries was immense. In other areas we did get to work on children who had had fluoridated water, and had received fluoride for their entire lives, and there was, you would note immediately a tremendous reduction in dental decay in the range of 60 per cent or better.’
W. L. Williams had been with the Louisville Water Company for 20 years. He was superintendent of the purification plant and has a bachelor's degree in chemistry and a master's degree in bacteriology. He had been an instructor on these subjects in high schools and at the University of Louisville Medical College for 19 years. When asked about the corrosive effects of fluoride on water pipes, Mr. Williams replied: ‘It is generally known that fluoride causes no corrosion at all.’ He stated that over one-half million people are served by the Louisville Water System, and in all the thousands of complaints by water consumers ‘none of them had anything to do with fluoride.’
F. J. Maier is a consulting engineer for Pan-American Health Organization, with 33 years' experience in sanitary engineering,FN1 part of which period he was in charge of a laboratory in Bethesda, Maryland, relative to the problems associated with fluoride in water. He was asked this question and gave the following answer:
FN1. This experience was with the U.S. Public Health Service.
‘Q.5 Mr. Maier, during the time you headed up the fluoridation program of the United States Public Health Service, did you learn of any ill effects on any person throughout the United States from having consumed fluoridated water that was properly administered, that is, proper amounts?
‘A. We have no single instance in the United States, or anywhere in the world where fluoridation is practiced that this has occurred.’
He also stated he never in all his years of experience had heard of fluoride causing corrosion in water pipes. He gave testimony that the equipment proposed at Somerset was standard, safe equipment.
There was other testimony by other disinterested, qualified witnesses for appellants, and we have given only the high points in the testimony of the witnesses to whom we have just referred.
We turn now to the evidence offered by appellee in opposition to fluoridation.
Appellee, Dr. McNevin, a local chiropractor, testified that sodium fluoride is a virulent poison, a fact which is admitted by the appellants; that when fluoridation was commenced he became alarmed for the safety of himself and his family; and that the consumption of fluoridated water would be injurious to them.
Dr. Ray McPike, a Louisville chiropractor, testified that fluoride does not treat water, but instead treats people and introduced a number of exhibits, over the appellants' objection, indicating the continued consumption of fluoride would be harmful to children.
George Whatley Massey, a graduate of Ohio State University, a student at Georgia Institute of Technology, and an instrumentation engineer of Knoxville, Tennessee, testified that ingestion of anything over 1.25 PPM is likely to be toxic and that this is the ‘safe’ amount claimed by the U.S. Public Health Service; that fluoride is corrosive in pipes as shown by experience in the cities of Pittsburgh, Miami, Concord, New Hampshire, and Andover, Massachusetts; that in Pittsburgh it was necessary to add 3 PPM at the water plant to get the recommended 1 PPM at the tap; that the surplus fluoride concentrated and remained in water pipes up to 8,000 PPM in Concord and that 400 PPM is a lethal dose; that evidence from the Grand Rapids, Philadelphia, and Evanston, Illinois, experience indicated that children drinking fluoridated water do not get fewer cavities but only an approximate three-year delay; that the safety factor of the ingestion of fluoride is 0; that fluoride concentrates of 6,000 PPM were found in 16-inch water mains, and of 2,500 PPM in a 3/4-inch house water line in fluoridated San Francisco, and that in Concord, New Hampshire, where no fluoride had been added to the water supply for two weeks it was found the water still had a concentration of 2.8 PPM.
Cecil Petard, M.D., of Knoxville, Tennessee, a practicing physician for 16 years, a member of the American Medical Association and of the Association of American Physicians and Surgeons, testified that the American Medical Association is not prepared to state that ‘no harm will be done to any person by water fluoridation’ and has not carried out any research, either long-term or short-term, regarding the possibility of any side effects; that the AMA does not guarantee the safety of fluoridated water; that a 1963 article published in the American Journal of Diseases of Children stated it is unnecessary and unwise to add fluoride to drinking water for the reasons, among others, that the dosage is highly variable and inaccurate and that older children and adults need not and should not be dosed with the drug; that he has two patients who have been harmed and suffered illness from drinking fluoridated water from a public water supply; that the Association of American Physicians and Surgeons, Inc. in San Francisco on April 12, 1958, adopted a resolution condemning the addition of any substance to public water supplies for the purpose of affecting the bodies or mental functions of consumers; that there is evidence to indicate that fluoridation increased the death rate in Grand Rapids over the area outside the city, and unfluoridated Knoxville, Tennessee, has a death rate lower than the state average; that fluoridation increases the incident of mongoloid births to an alarming degree.
Dr. Petard further testified there is considerable disagreement among the doctors of Knoxville over the desirability of fluoridation as a health meansure, and that he as a physician was not in favor of adding fluoride to public drinking water because he would rather wait until better evidence is in, an opinion in which he is apparently joined by the United States Veterans Administration and opposed by the United States Public Health Service. Dr. Petard also testified that very few dentists in Knoxville prescribed fluoride for the teeth of patients.
Mr. J. V. Adams of New Albany, Indiana, with a bachelor's degree in chemistry, a master's degree in public health from the University of Michigan, a director's degree in health and safety from Indiana University, and who is now working on a doctorate degree, testified that sodium fluoride is a poison, originally used as a rat and roach killer, and that continued ingestion of fluoride over a period of time would accumulate in the human body; that his experiments indicated that certain foods contain high concentration of fluoride and that it is the highest and strongest chemical; that it concentrates and accumulates in water pipes and in the body; that people ingest it in varying quantities by eating, breathing, and drinking water, and that it is the highest form of poison, is not a nutrient and has no food value; that the United States Public Health Service recommended the addition of iodine to the publice water supplies several years ago, then changed their position when they discovered it was producing certain systematic disorders-especially goiter; that fluoride cannot be controlled and that it affects the blood cells and nuclear cells in the human body.
It is apparent that appellee's witnesses had had no applicable experience with fluoridation. They testified, for the most part, from information in newspapers and pamphlets, one of which was published by the Pure Water Association of Fresno, California. A large part of appellee's evidence is based on hearsay. See Kentucky Public Service Co. v. Topmiller, 204 Ky. 196, 263 S.W. 706 (1924); and 32 C.J.S. Evidence s 717.
After considering the experience and qualification of appellants' witnesses and the lack of experience and qualification of appellee's witnesses, and the studies, tests, experiences, and recommendations of practically all the people and organizations into whose care the health of this nation has been entrusted, we conclude plaintiff failed in his burden to prove the resolution was arbitrary and that the finding of the trial court is clearly erroneous. Nourse v. City of Russellville, 257 Ky. 525, 78 S.W.2d 761 (1935); and City of Louisville v. Thompson, Ky., 339 S.W.2d 869 (1960).
In Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905), the Supreme Court said writing on a kindred question of appellate review:
‘If there is any such power in judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when... a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’ (Emphasis added.)
Although this court has not had occasion to determine the legality of fluoridation, at least fourteen states have done so. See De Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98, cer. den. 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135 (1953); Dowell v. City of Tulsa, Okl., 273 P.2d 859, 43 A.L.R.2d 445, cer. den. 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715 (1954); Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142, app. dis. 348 U.S. 892, 75, S.Ct. 216, 99 L.Ed. 701 (1954); Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609, app. dis. 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463; Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352 (1955); Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242 (1955); Baer v. City of Bend, 206 Or. 221, 292 P.2d 134 (1956); Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W.2d 569 (1961); Readey v. St. Louis Country Water Co., Mo., 352 S.W.2d 622 (1961); City Commission of City of Fort Pierce v. State ex rel. Altenhoff, 143 So.2d 879 (Ct.App.Fla.1962); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1964); Rogowski v. City of Detroit, 374 Mich. 408, 132 N.W.2d 16 (1965); Hall v. Bates, 247 S.C. 511, 148 S.E.2d 345 (1966); Paduano v. City of New York, 17 N.Y.2d 875, 271 N.Y.S.2d 305, 218 N.E.2d 339 (1966); Attaya v. Town of Gonzales, 192 So.2d 188 (Ct.App.La., 1966); Birnel v. Town of Fircrest, 53 Wash.2d 830, 335 P.2d 819 (1959); and Wilson v. City of Mountlake Terrace, 69 Wash.2d 148, 417 P.2d 632 (1966).
In De Aryan, Dowell, Chapman and Kraus, supra, the Supreme Court either denied certiorari or dismissed the appeal.
We find no merit in appellee's contention that fluoridation of public water supplies violates his rights under the first section of the Founteenth Amendment to the Constitution of the United States or section two of the Constitution of Kentucky or KRS 315.020. See Dowell v. City of Tulsa, supra.
During a period of over 20 years fluoridation has come through the experimental stage with flying colors. True, there have been critics of the system, and it had borne the blame for many defective water systems, many of which resulted from other causes. Any endeavor of such magnitude as fluoridation may encounter some imperfections due to human or mechanical error, but the benefits so far outweight the disadvantages the endeavor is justified.
Nearly every great medical and scientific discovery has fought the battle of ‘trial and error’ and has been opposed by the skeptics and the incredulous. But progress demands that research persist unhampered by the courts.
The judgment is reversed with directions to dissolve the injunction and dismiss the complaint.
All concur.

EDWARD P. HILL, Judge.
The judgment from which this appeal is prosecuted enjoins the fluoridation of the water system in Somerset, Kentucky, and adjoining area. We reverse the judgment. The questions herein presented have not heretofore been presented or decided by this court, although fluoridation of public water supplies has been in operation in Newburgh, New York, and Grand Rapids, Michigan, since 1945. Maysville, Greensburg, and Louisville in 1951 were the first Kentucky cities to fluoridize their water supplies.
This suit was filed by appellee, Christopher B. McNevin, a doctor of chiropractic in Somerset, against M. G. Graybeal and Kentucky Water Service Company. Later the Kentucky State Board of Health was permitted to intervene.
In May 1966, the State Board of Health, acting pursuant to KRS 211.090(1)(d) and 211.180, adopted an amendment to Regulation C-NEG-2, Fluoridation of Public Water Supplies, by which cities of the first four classes are permitted to ‘adjust deficient waters to an optimum fluoride content for the protection of the dental health of the people served by the supply.’
The regulation provided that approval by the Department of Health was made contingent upon provision by the supplier of fluoridation insuring adequate control and supervision and safe operation and maintenance. Requirements as to equipment, facilities, and service were rigidly prescribed, covering reliable feeding equipment and the rate of feed, protection of operators, separate storage of the fluoride chemical, laboratory facilities, testing and sampling and the submission of samples to the department. Other safety provisions were embodied in the regulation.
Memoranda were issued to mayors and water plant superintendents, including those of Somerset, advising them that the water systems of those cities in which fluoridation was not installed within six months would be classified as ‘provisional’ in lieu of the ‘approved’ rating existing before the adoption of the regulation, which according to appellee amounted to the approval of fluoridation and a downgrading of the water system of those not complying with the regulation.
The regulation fixed the ‘optimum fluoride content’ of public water supplies to be achieved by the regulation to be one-part fluoride per one-million parts of water.
The Somerset water system, built in 1957, included a separate room and some facilities for fluoridation in anticipation of future use.
On January 23, 1967, the city council of Somerset adopted a resolution requesting appellant Kentucky Water Service Company to ‘install as soon as possible’ the necessary equipment to introduce fluoride into the city water system. This company has been the supplier of public water in Somerset since 1957.
Appellee questions the validity of the regulation referred to above by charging that the regulation (1) is in violation of KRS 315.020, regulating the dispensing of drugs; (2) violates his ‘right to freedom of religion’; (3) violates his rights under section one of the Fourteenth Amendment to the Constitution of the United States; (4) is ‘arbitrary and in violation of section two of the Constitution of Kentucky.’ He further asserts that he had no opportunity to be heard and we denied due process; and that the proposed action by the city will do incalculable harm to his health, to the health of his family, and to other consumers.
After a lengthy trial by the court without a jury, the trial court fully agreed with plaintiff and granted the permanent injunctive relief sought. The State Board of Health and the Kentucky Water Service (hereinafter Water Service) have appealed. Fluoridation had been commenced February 10, 1967, but was discontinued by the injunction herein on April 7, 1967.
By Chapter 211 of KRS the legislature has wisely recognized and declared that the public health is an ‘essential function’ of the government of this Commonwealth. KRS 211.005. ‘The relation of dental hygiene to the health of the body generally is now so well recognized as to warrant judicial notice.’ See Dowell v. City of Tulsa, Okl., 273 P.2d 859, 43 A.L.R.2d 445 and KRS 211.180.
The State Board of Health is empowered to ‘adopt rules and regulations.’ KRS 211.090(1)(d).
Among the police powers of government, the power to promote and safeguard the public health ranks at the top. If the right of an individual runs afoul of the exercise of this power, the right of the individual must yield.
The State Board of Health is composed of ten members, including the Commissioner of Health. One member must be a registered pharmacist, one a licensed dentist, one a licensed osteopath, and the remaining six members shall be ‘licensed medical physicians.’ It is a regulation of this board in the field of fluoridation, a medical-scientific field, that appellee McNevin petitions the court, composed of men of law, not medicine or science, to set aside and hold for naught.
The general rule in regard to judicial review of rules and regulations of administrative agencies is thus stated in 42 Am.Jur., Public Administrative Law, s 209:
‘In general, in the absence of valid statutory provisions or other factors affecting the scope and extent of judicial review, administrative determinations will not be interfered with by the courts unless, but will be interfered with where, the determination is beyond the power which could constitutionally be vested in or exercised by an administrative authority; the determination is without or in excess of the statutory powers and jurisdiction of the administrative authority, the determination is an exercise of power so arbitrary or unreasonable as virtually to transcend the authority conferred, or is otherwise an abuse of discretion, or is in disregard of the fundamental rules of due process of law, as required by constitutional or statutory directions...made... .’
This general rule of judicial review may not apply with equal force to a regulation by an agency composed of specialists in an area in which the courts must acknowledge a limited understanding. Speaking in this vein, it was written in Hutchinson vo City of Valdosta, 227 U.S. 303, at page 307, 33 S.Ct. 290, at page 292, 57 L.Ed. 520 that:
‘It may be that an arbitrary exercise of the power could be restrained, but it would have to be palpably so to justify a court in interfering with so salutary a power and one so necessary to the public health (sewer control).’ (Emphasis added)
See also 2 Am.Jur.2d Administrative Law, s 633, from which we quote the following:
‘Perhaps the most significant factor limiting review by the courts of action of administrative agencies generally, although undoubtedly variable in degrees appropriate to particular agencies, is the scope of the power which has been reposed in the administrative agency by statute and the informed and expert judgment of the agency based upon its accumulated experience in the matters with which the statute is concerned. Courts often advert to the expertness, special competence, specialized knowledge, or experience of the administrative agency which fortifies the judgment of the agency... .’
As the issues were presented in the trial court, the power of that court was limited to a determination of whether the regulation in question was arbitrary or in violation of appellee's constitutional rights in the particular respects pointed out by appellee. On the issue of arbitrariness, the burden was on the plaintiff to show that the regulation had no reasonable basis in fact or had no reasonable relation to the protection of the public health. The consitutional question was one of law. Probably the true test of arbitrariness would depend on the evidence the board had before it when it adopted the resolution. But the parties went beyond this test and proceeded to offer evidence in circuit court, so we consider the case as practiced.
We must look to the facts in this record and the facts before the board when it adopted the requlation to determine whether the finding of the trial court of arbitrariness is ‘clearly erroneous.’ CR 52.01. Necessarily this will be a lengthy process due to the importance we attach to the qualification of the witnesses.
We first discuss appellants' witnesses and their evidence.
Dr. Russell E. Teague has been Commissioner of Health in Kentucky since 1956, and is a member of the State Board of Health. He has been with the State Department of Health since 1930 except for a one-year leave to earn a master's degree in public health and epidemiology at Johns Hopkins. He was president of the American Association of State and Territorial Health Commissioners in 1967.
Dr. Teague testified that of Kentucky's 3,000,000 population the number served by public water supplies is 1,800,000, and out of this number some 1,200,000, or 64 percent, drink water containing fluoride; that extensive studies and tests were made preceding the use of fluoridation in this state. The first test showed dental defects in 90 percent of the school children. After 10 years' use of fluoride, these tests showed a 90-percent reduction in dental defects in school children; that recent tests in Louisville, Maysville, and Ashland showed similar results; that significant benefits also accrue even where availability of fluoride is deferred to later years, and these benefits continue into and through old age; that there is substantial evidence that controlled fluoridation produces stronger bone structure, beneficial to older people. Dr. Teague testified that modern fluoride equipment is safe and presents no health problem and that proper fluoridation ‘does not in any sense produce harm to the health of the people.’
Nick G. Johnson, Director, Sanitary Engineering Program, Division of Environmental Health, State Department of Health, is responsible for enforcement of public water supply regulatory measures. He has a bachelor's degree in civil engineering from the University of Louisville, and a master's degree in sanitary engineering from the University of Michigan. He has been with the Department of Health for 20 years. He testified that all requirements and specifications of the regulation were fully met, both as to equipment and management personnel.
Dr. M. A. Shepherd is the Regional Medical Director, Central Region (embracing 20 counties), State Department of Health. He is a physician with 12 years' experience in this work with headquarters in Somerset. He practiced medicine there before his association with the Department of Health. He stated that there was a great demand by the citizens of Somerset for fluoridation. He said:
‘As a public health physician certainly it has been my duty to research the literature in the field of public health and I have read extensively in the literature etc., there has been no documented evidence of any danger or any damage done from using fluorided public water. ...Every national health organization in the United States that speaks with authority on the benefits and safety of fluoridation has adopted policies favorable to the meansure. ...They...(include) the American Dental Association, American Medical Association, American Association of Public Health Dentists, Association of State and Territorial Dental Directors, Association of State and Territorial Health Officers, National Research Council, U.S. Public Health Service, American Association for the Advancement of Science, American Academy of Pediatrics, Commission on Chronic Illness, Inter-Association Committee on Health, American Society of Denistry for Children, American Public Health Association, American Academy of Dental Medicine, Canadian Dental Association, Canadian Medical Association, Canadian Public Health Association, International Dental Federation, American Pharmaceutical Association, National Congress of Parents and Teachers, American Federation of Labor and Congress of Industrial Organizations, American Legion, U.S. Junior Chamber of Commerce.’
Dr. E. D. Gernert has the D.M.D. and M.P.H. degrees. He is professor of community dentistry, University of Louisville, and was Director of Dental Health, State Department of Health, until 1967.
Dr. Gernet testified he has closely followed the development of fluoridation since 1945 and studied the various tests and research on the subject; that he participated in various studies himself; that he and his associates ‘accumulated base line statistics on the condition of children's mouths and...took a mortality and morbidity rating on these communities' (Maysville, Greensburg, and Louisville) and that they followed these studies periodically; that they ‘found that when the children had full benefits of fluoridation from birth on there was a 60% reduction in tooth decay.’ That there was ‘no evidence of any impairment to health in these children from the study of the morbidity and mortality rates.’
Dr. Gernert further stated:
‘Long before 1945 when Newburgh, New York, was fluoridated, we were certain there was no detriment to health from fluoride in the diet or water, and the question at that time was whether we could actually put the fluoride in and control it without too much expense and too much difficulty. Of course, the Newburgh studies and the Grand Rapids studies, and others assured us that this could be done. Extensive studies in Newburgh, New York, health study of the general health of the patient, blood studies, bone studies, X-ray studies and everything else were conducted during this procedure or method of fluoridation, so that long before 1951 when we advocated fluoridation for communities in Kentucky, in my opinion there was no question as to the safety of the procedure, and this has been borne out by sixteen years of experience in fluoridation in community water supplies in this state.’
He also stated that fluoridation process does not constitute the dispensing of drugs or medicine; that fluoridation is not a medication, it is a ‘nutrient which produces stronger teeth and bones'; that fluoridation is ‘one of the great discoveries of our time’; and that it ‘is safe.’
A. B. Coxwell, D.M.D., is executive secretary of the Kentucky Dental Association and has practiced dentistry for 20 years. He testified that the House of Delegates of the Kentucky Dental Association passed a resolution ‘demanding that the State Board of Health take action to see that the water system of the State of Kentucky be adequately fluoridated’; that ‘every known accredited organization in the world has approved the fluoridation of water supplies for the prevention of dental caries'; that he had never seen ‘any evidence of any harm done to any one’ due to fluoridation.
Dr. Pat H. Lyddan, a pedodontist, with a D.D.S. degree, has served as president of the Kentucky Dental Association, and as an instructor in children's dentistry at the University of Louisville for 22 years. Dr. Lyddan gave this answer to a question as to his experience:
‘After the water was fluoridated in Louisville, within two or three years after the water was fluoridated, we began to see in our practice and this was not only true in our practice and this was not only well, I will get to that in a moment, the nature of my practice changed remarkably. Up until that time we were fighting a losing battle just to be able to restore all the decaying teeth, and in a period of about three years our practice changed to one where we were able to do more preventive dentistry, or what we call interceptive dentistry or preventive dentistry and to educate the parents, and also the patients to try to prevent tooth decay, due to the fact that we had this 60% reduction in decay, because of fluoridation of our local water supply. Also in addition the American Society of Dentistry for Children made a study of pedodontics all over the country, and in areas where the water was fluoridated, the result bore out the statement that I made, that all of us who practice in fluoridated areas, that our practice changed from 80 or 90 percent restorative dentistry, or trying to restore and fill the decayed teeth, to something like 60% of our practice became more or less a maintenance and preventive type of practice.’
When asked as to whether he knew of any harm due to fluoridation, he said:
‘No, I have not. In addition during the war I lived in a community in Texas where the water contained from 2 1/2 to 3 1/3 parts fluoride, naturally, and in addition to not having very much cavities, the general health of all the people in this community was excellent.’
Dr. Alvin L. Morris has the D.D.S. and Ph.D. degrees and has been Dean of the University of Kentucky College of Dentistry since 1961. He gave this answer as to the effect of fluoridation:
‘It is the responsibility of the Dean to serve as the major administrative officer of the academic institution, also to engage in instruction and some research. ... The evidence is overwhelming that water containing one part per million of fluoride will result in the reduction of new cavities developing in children to the extent of approximately 60 per cent. During my past experience in academic life I have had the privilege of serving as a colleague for three years with Dr. Harold Hodge, and Dr. Frank Smith, of the University of Rochester. These gentlemen have been responsible for doing the major research relative to the benefits of fluoride on biologic tissues. Their research, which was taking place during the time I was working with them revealed unequivocally that there would be no detrimental or harmful effects to the health of anyone consuming a water supply containing one part per million. Their research has been regarded as the key work, and the earliest work for establishing this fact on an experimental basis. Since that time, the experience with some 63 million Americans who have been and are drinking public water supplies with fluoride added to these amounts has completely substantiated their research.’
Dr. D. L. Gambrall, D.M.D., M.P.H., is Acting Director, Dental Health Program of the State Department of Health. His M.P.H. degree is from the University of Michigan. He stated:
‘During my first year with the State Health Department I was in the clinical program. In this program we provided care to children throughout the state, indigent children, mostly. In many areas I worked on children who did not have the benefit of fluoridated water. The prevalence of caries was immense. In other areas we did get to work on children who had had fluoridated water, and had received fluoride for their entire lives, and there was, you would note immediately a tremendous reduction in dental decay in the range of 60 per cent or better.’
W. L. Williams had been with the Louisville Water Company for 20 years. He was superintendent of the purification plant and has a bachelor's degree in chemistry and a master's degree in bacteriology. He had been an instructor on these subjects in high schools and at the University of Louisville Medical College for 19 years. When asked about the corrosive effects of fluoride on water pipes, Mr. Williams replied: ‘It is generally known that fluoride causes no corrosion at all.’ He stated that over one-half million people are served by the Louisville Water System, and in all the thousands of complaints by water consumers ‘none of them had anything to do with fluoride.’
F. J. Maier is a consulting engineer for Pan-American Health Organization, with 33 years' experience in sanitary engineering,FN1 part of which period he was in charge of a laboratory in Bethesda, Maryland, relative to the problems associated with fluoride in water. He was asked this question and gave the following answer:
FN1. This experience was with the U.S. Public Health Service.
‘Q.5 Mr. Maier, during the time you headed up the fluoridation program of the United States Public Health Service, did you learn of any ill effects on any person throughout the United States from having consumed fluoridated water that was properly administered, that is, proper amounts?
‘A. We have no single instance in the United States, or anywhere in the world where fluoridation is practiced that this has occurred.’
He also stated he never in all his years of experience had heard of fluoride causing corrosion in water pipes. He gave testimony that the equipment proposed at Somerset was standard, safe equipment.
There was other testimony by other disinterested, qualified witnesses for appellants, and we have given only the high points in the testimony of the witnesses to whom we have just referred.
We turn now to the evidence offered by appellee in opposition to fluoridation.
Appellee, Dr. McNevin, a local chiropractor, testified that sodium fluoride is a virulent poison, a fact which is admitted by the appellants; that when fluoridation was commenced he became alarmed for the safety of himself and his family; and that the consumption of fluoridated water would be injurious to them.
Dr. Ray McPike, a Louisville chiropractor, testified that fluoride does not treat water, but instead treats people and introduced a number of exhibits, over the appellants' objection, indicating the continued consumption of fluoride would be harmful to children.
George Whatley Massey, a graduate of Ohio State University, a student at Georgia Institute of Technology, and an instrumentation engineer of Knoxville, Tennessee, testified that ingestion of anything over 1.25 PPM is likely to be toxic and that this is the ‘safe’ amount claimed by the U.S. Public Health Service; that fluoride is corrosive in pipes as shown by experience in the cities of Pittsburgh, Miami, Concord, New Hampshire, and Andover, Massachusetts; that in Pittsburgh it was necessary to add 3 PPM at the water plant to get the recommended 1 PPM at the tap; that the surplus fluoride concentrated and remained in water pipes up to 8,000 PPM in Concord and that 400 PPM is a lethal dose; that evidence from the Grand Rapids, Philadelphia, and Evanston, Illinois, experience indicated that children drinking fluoridated water do not get fewer cavities but only an approximate three-year delay; that the safety factor of the ingestion of fluoride is 0; that fluoride concentrates of 6,000 PPM were found in 16-inch water mains, and of 2,500 PPM in a 3/4-inch house water line in fluoridated San Francisco, and that in Concord, New Hampshire, where no fluoride had been added to the water supply for two weeks it was found the water still had a concentration of 2.8 PPM.
Cecil Petard, M.D., of Knoxville, Tennessee, a practicing physician for 16 years, a member of the American Medical Association and of the Association of American Physicians and Surgeons, testified that the American Medical Association is not prepared to state that ‘no harm will be done to any person by water fluoridation’ and has not carried out any research, either long-term or short-term, regarding the possibility of any side effects; that the AMA does not guarantee the safety of fluoridated water; that a 1963 article published in the American Journal of Diseases of Children stated it is unnecessary and unwise to add fluoride to drinking water for the reasons, among others, that the dosage is highly variable and inaccurate and that older children and adults need not and should not be dosed with the drug; that he has two patients who have been harmed and suffered illness from drinking fluoridated water from a public water supply; that the Association of American Physicians and Surgeons, Inc. in San Francisco on April 12, 1958, adopted a resolution condemning the addition of any substance to public water supplies for the purpose of affecting the bodies or mental functions of consumers; that there is evidence to indicate that fluoridation increased the death rate in Grand Rapids over the area outside the city, and unfluoridated Knoxville, Tennessee, has a death rate lower than the state average; that fluoridation increases the incident of mongoloid births to an alarming degree.
Dr. Petard further testified there is considerable disagreement among the doctors of Knoxville over the desirability of fluoridation as a health meansure, and that he as a physician was not in favor of adding fluoride to public drinking water because he would rather wait until better evidence is in, an opinion in which he is apparently joined by the United States Veterans Administration and opposed by the United States Public Health Service. Dr. Petard also testified that very few dentists in Knoxville prescribed fluoride for the teeth of patients.
Mr. J. V. Adams of New Albany, Indiana, with a bachelor's degree in chemistry, a master's degree in public health from the University of Michigan, a director's degree in health and safety from Indiana University, and who is now working on a doctorate degree, testified that sodium fluoride is a poison, originally used as a rat and roach killer, and that continued ingestion of fluoride over a period of time would accumulate in the human body; that his experiments indicated that certain foods contain high concentration of fluoride and that it is the highest and strongest chemical; that it concentrates and accumulates in water pipes and in the body; that people ingest it in varying quantities by eating, breathing, and drinking water, and that it is the highest form of poison, is not a nutrient and has no food value; that the United States Public Health Service recommended the addition of iodine to the publice water supplies several years ago, then changed their position when they discovered it was producing certain systematic disorders-especially goiter; that fluoride cannot be controlled and that it affects the blood cells and nuclear cells in the human body.
It is apparent that appellee's witnesses had had no applicable experience with fluoridation. They testified, for the most part, from information in newspapers and pamphlets, one of which was published by the Pure Water Association of Fresno, California. A large part of appellee's evidence is based on hearsay. See Kentucky Public Service Co. v. Topmiller, 204 Ky. 196, 263 S.W. 706 (1924); and 32 C.J.S. Evidence s 717.
After considering the experience and qualification of appellants' witnesses and the lack of experience and qualification of appellee's witnesses, and the studies, tests, experiences, and recommendations of practically all the people and organizations into whose care the health of this nation has been entrusted, we conclude plaintiff failed in his burden to prove the resolution was arbitrary and that the finding of the trial court is clearly erroneous. Nourse v. City of Russellville, 257 Ky. 525, 78 S.W.2d 761 (1935); and City of Louisville v. Thompson, Ky., 339 S.W.2d 869 (1960).
In Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905), the Supreme Court said writing on a kindred question of appellate review:
‘If there is any such power in judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when... a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’ (Emphasis added.)
Although this court has not had occasion to determine the legality of fluoridation, at least fourteen states have done so. See De Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98, cer. den. 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135 (1953); Dowell v. City of Tulsa, Okl., 273 P.2d 859, 43 A.L.R.2d 445, cer. den. 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715 (1954); Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142, app. dis. 348 U.S. 892, 75, S.Ct. 216, 99 L.Ed. 701 (1954); Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609, app. dis. 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463; Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352 (1955); Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242 (1955); Baer v. City of Bend, 206 Or. 221, 292 P.2d 134 (1956); Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W.2d 569 (1961); Readey v. St. Louis Country Water Co., Mo., 352 S.W.2d 622 (1961); City Commission of City of Fort Pierce v. State ex rel. Altenhoff, 143 So.2d 879 (Ct.App.Fla.1962); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1964); Rogowski v. City of Detroit, 374 Mich. 408, 132 N.W.2d 16 (1965); Hall v. Bates, 247 S.C. 511, 148 S.E.2d 345 (1966); Paduano v. City of New York, 17 N.Y.2d 875, 271 N.Y.S.2d 305, 218 N.E.2d 339 (1966); Attaya v. Town of Gonzales, 192 So.2d 188 (Ct.App.La., 1966); Birnel v. Town of Fircrest, 53 Wash.2d 830, 335 P.2d 819 (1959); and Wilson v. City of Mountlake Terrace, 69 Wash.2d 148, 417 P.2d 632 (1966).
In De Aryan, Dowell, Chapman and Kraus, supra, the Supreme Court either denied certiorari or dismissed the appeal.
We find no merit in appellee's contention that fluoridation of public water supplies violates his rights under the first section of the Founteenth Amendment to the Constitution of the United States or section two of the Constitution of Kentucky or KRS 315.020. See Dowell v. City of Tulsa, supra.
During a period of over 20 years fluoridation has come through the experimental stage with flying colors. True, there have been critics of the system, and it had borne the blame for many defective water systems, many of which resulted from other causes. Any endeavor of such magnitude as fluoridation may encounter some imperfections due to human or mechanical error, but the benefits so far outweight the disadvantages the endeavor is justified.
Nearly every great medical and scientific discovery has fought the battle of ‘trial and error’ and has been opposed by the skeptics and the incredulous. But progress demands that research persist unhampered by the courts.
The judgment is reversed with directions to dissolve the injunction and dismiss the complaint.
All concur.

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Chapman v. City of Shreveport

Louisiana, Injunction, State police power

Plaintiff

Chapman

Defendant

City of Shreveport

State

Louisiana

Other Parties

-

Case Tags

- Injunction

- State police power

Citation

225 La. 859; 74 So. 2d 142 (La. 1954)

Year

1954-01-01T00:00:00

Court Name

Supreme Court of Louisiana

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Hawthorne

Opinion Text

HAWTHORNE, Justice.
This is an appeal by the City of Shreveport from a judgment enjoining it from fluoridating the municipal water supply. The City of Shreveport owns and operates its own municipal waterworks plant and other facilities for the sale and distribution of water for consumption and other uses of the inhabitants of that city. On October 16, 1953, the Shreveport city council adopted a resolution authorizing the commissioner of public utilities to proceed with the advertising and calling for bids for the necessary equipment to fluoridate the city water supply in accordance with the best plans now available and to receive these bids on or before October 27. The initial amount which the city proposes to spend in order to fluoridate the water supply is shown by the record to be in excess of $10,000 and the annual operating expense approximately $21,000.
The plaintiffs, as residents, citizens, taxpayers, and purchasers of water from the city, instituted this suit seeking a preliminary writ of injunction to prevent the proposed fluoridation of the public water supply and the expenditure of these public funds for such purpose. After trial in the lower court a preliminary injuncation issued enjoining, restraining, and prohibiting the City of Shreveport from proceeding further to fluoridate the water supply of that city. From that judgment the city was granted a devolutive appeal to this court.
As we appreciate and understand the trial judge's written opinion, he granted a preliminary injunction in the instant case because in his opinion the charter of the City of Shreveport delegated no authority, express or implied, to the city to fluoridate its water supply, and the city did not have this power or right under its police power in the domain of public health. In the course of his reasons for judgment he recognized the well settled principle of law that a municipal authority may take any action it may determine to be necessary and expedient under its police power in the domain of public health, provided the purpose and object of such action bears a reasonable relation to the public health and provided the means employed is not arbitrary, unreasonable, oppressive, or violative of the constitutional guarantees of the citizens. He concluded, however, that under the facts of the instant case the fluoridation of the city water supply bears no reasonable relation to the public health or that it is not a matter of public health but is strictly within the realm of private dental health and hygiene, in which each person should be free to choose his course for himself and those for whom he is responsible in the family relationship.
For the primary purpose of reducing tooth decay in children 12 years of age and under, the City of Shreveport proposes to add to the water furnished by it for the use and consumption of the citizens sodium fluoride in the proportion of one part per million. In furtherance of this purpose the resolution authorizing the calling for bids for the necessary equipment for fluoridation was adopted by the city council at the request of the Council of Dental Health of the Louisiana State Dental Society, the Council of Dental Health of the Fourth District Dental Association, the Shreveport Medical Society, and the City Board of Health of Shreveport, all of which advocated and approved the fluoridation of the city's water supply.
The relationship between the fluoride content of water supplies and dental caries has been the subject for some years of extensive scienctific study, research, and experiments, and as a result of this research the court in the instant case has the benefit of facts ascertained, studies made, and opinions formed by many leading and prominent American dentists, physiciants, surgeous, scientists, health and dental associations and organizations, whose statements have been filed in evidence, on the advisability of the fluoridation of water for human consumption. In sum, these statements disclose the following pertinent facts:
Dental caries, or tooth decay, is a pandemic disease, affecting most of our population both adults and children. Fluorides in varying proportions from less than one to 14 parts per million exist naturally in the water supplies of many regions of this country, and it has been demonstrated by studies made in many sections throughout the United States that in communities where the water supply contains no fluoride tooth decay among children is approximately three times greater than it is among children living in communities where the water supply contains one part of fluoride per million parts of water or more. In these studies other factors of diet and other mineral components of water were considred, but it was found that only the fluoride content of the water consumed bore direct relationship to consistent protection from dental caries. This preventive effect of fluorides on tooth decay was found to be most efficient during the period when the dentine and enamel of the permanent dentition are being formed, which is the period from birth to about the twelfth year, but it was shown that the protection afforded against dental caries in this formative period continues well into adult life, even into the middle 30's and 40's. Studies were made of the effect on tooth decay when fluorides were artificially added to municipal water supplies, and it was found that the fluorides artificially added had the same preventive effect on caries as did the fluorides naturally existing in water.
By November 6, 1953, more than 840 communities, with a total population of 15,578,300, were using water supplies which had been artificially fluoridated in concentrations from 0.7 to 1.5 parts per million. By 1951, after five or six years of the fluoridation of the water supplies in certain cities, studies and examinations were made of the teeth of school children in these cities (and also, for comparison, of those of the children in cities where the water supply contained no fluorides), and the finding reported was that there has been a reduction of from 50 per cent to 65 per cent of decay in permanent teeth in children in the cities where fluorides had been added artificially to the water. As a result of these studies and experiments the United States Public Health Service, the National Institute of Health, the American Dental Association, and numerous other national organizations recommended the fluoridation of municipal water supplies as a desirable and effective health measure.
The City of Shreveport proposes to use the recommended concentration of one part per million, and this concentration has not been reported to produce any adverse physiological effect. Vital statistics and reports of physicians from communities where water containing one part per million or over is consumed have shown uniformly no undesirable effects on birth or death rates or on invalids, elderly or sick individuals, or any other persons.
The addition of fluorides to the water supply does not affect the color, odor, or taste of the water. The same kind of procedure which has long been used to feed chlorine and other chemicals into the water supply is used to introduce fluorides into the water, and there is no question that fluorides can thus be added to the water without danger of physical over-feeding or any mechanical breakdown which would produce a toxic effect.
The charter of the city of Shreveport, which was written under the authority of a 1948 amendment to Article 14, § 37, of the Constitution and approved by a vote of the citizens of that community in 1950, confers upon that city the power to adopt such measures as are necessary in the opinion of the council to promote the general welfare of the inhabitants of that city in Section 2.01 of the charter:
‘General Powers. The City of Shreveport shall have and may exercise all the powers, rights, and privileges and immunities which are now or may hereafter be or could be conferred upon cities of its population class by the constitution and general laws of the state; all powers, rights, privileges and immunities heretofore conferred on said city by any special act and not inconsistent with this plan of government; and all other powers pertinent to the government of the city the exercise of which is not expressly prohibited by the constitution of the state and which, in the opinion of the council, are necessary or desirable to promote the general welfare of the city and the safety, health, peace, good order, commfort, convenience and morals of its inhabitants, as fully and completely as though such powers were specifically enumerated in this plan of government, and no enumeration of particular powers in this plan or government shall be taken to be exclusive but shall be held to be in addition to this general grant of power.’ (Italics ours.)
Accordingly, if fluoridation of the water supply bears any reasonable relation to the public health, it can be undertaken by the city under the express provisions of this section of its charter. Moreover, it is well settled that courts will not interfere with the legislative authority in the exercise of its police power unless it is plain and palpable that such action has no real or substantive relation to the public health or safety or general welfare. City of Shreveport v. Conrad, 212 La. 737, 33 So.2d 503; City of Shreveport v. Bayse, 166 La. 689, 117 So. 775. There also exists a presumption that an ordinance adopted under the police power of the state is valid, and the burden of proving the contrary is on him who asserts the invalidity or nullity. City of New Orleans v. Beck, 139 La. 595, 71 So. 883, L.R.A.1918A, 120; Ward v. Leche, 189 La. 113, 179 So. 52; State v. Saia, 212 La. 868, 33 So.2d 665; State v. Rones, 223 La. 839, 67 So.2d 99.
Although the immediate purpose of the proposed fluoridation is to retard and decrease the disease of dental caries in young children, the protection thus given will continue well into adult life. Not only will the proposed fluoridation retard and reduce this disease in the generation of children presently in Shreveport, but its effect will continue into their adult life, and consequently the proposed measure will ultimately be beneficial to all the residents of the city.
The health of the children of a community is of vital interest and of great importance to all the inhabitants of the community. Their health and physical well-being is of great concern to all the people, and any legislation to retard or reduce disease in their midst cannot and should not be opposed on the ground that it has no reasonable relation to the general health and welfare. Children of today are adult citizens of tomorrow, upon whose shoulders will fall the responsibilities and duties of maintaining our government and society. Any legislation, therefore, which will better equip them, by retarding or reducing the prevalence of disease, is of great importance and beneficial to all citizens. In our opinion the legislation does bear a reasonable relation to public health.
The appellees insist, and the district judge concluded, that fluoridation of the water to prevent tooth decay is not a matter of public health, but a matter of private health and hygiene. The evidence in this record refutes overwhelmingly this conclusion. Dental caries is one of the most serious health problems in the City of Shreveport, and in the nation as well. The fact that it is not a communicable disease and one that can cause an epidemic does not detract from its seriousness as affecting the health and well-being of the community. The plan for fluoridation, therefore, bears a reasonable relation to the general welfare and the general health of the community, and is a valid exercise of the power conferred by Section 2.01 of the charter if it is not arbitrary or unreasonable.
The appellees contend that fluoridation of the water supply is arbitrary and unreasonable because it may cause serious ill effects to the adult, aged, and ill; that it is arbitrary to fluoridate the water until clinical tests have proved that these serious effects will not result. The appellees have failed completely to prove that fluoridation would be harmful to the aged and ill.
There is expert opinion of respectable medical authority that fluorides added to water will have no more harmful effect than fluorides naturally appearing in water, and that in those places where fluorides natually appear no ill effects have been experienced by the aged or ill of the population. In those places where tests have been conducted no ill effects have been shown. It cannot be said, then, that the City of Shreveport is acting arbitrarily from this poing of view.
Appellees contend that it is arbitrary and unreasonable to compel a person to submit to the taking of preventive medicine except for the purpose of controlling the spread of contagious or infectious diseases. Their argument is not entirely appropriate to the instant case. In the first place there is no direct compulsion on anyone to drink the water. The compulsion at most is an indirect one, but it cannot be questioned, of course, that the fluoridation is undertaken with the view that the citizens or a large majority of them will receive its benefits by drinking the public water. The witnesses from the dental profession considered that the addition of fluoride to the water was not medicating it in the generally accepted sense, but was adding to it one of the mineral properties found naturally in water in some sections of the country.
Appellees next argue that it is unreasonable to fluoridate the water when it will reduce the incidence of disease only among a limited class. A health measure is not necessarily arbitrary because it affects primarily one class. It may, even so, be in the interest of the public generally. Ultimately, of course, the fluoridation wil benefit the whole population because the retarding of decay extends into adult life of the child who has had the benefit of water containing fluorides. It has long been recognized that a police measure is not objectionable because it does not extend to all classes. In Zucht v. King, 260 U.S. 174, 43 S.Ct. 24, 25, 67 L.Ed. 194, it was said:
‘...A long line of decisions by this court [has]...settled that in the exercise of the police power reasonable classification may be freely applied, and that regulation is not violative of the equal protection clause merely because it is not all-embracing. ...’ See also West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703; Sturges & Burn Manufacturing Co. v. Beauchamp, 231 U.S. 320, 34 S.Ct. 60, 58 L.Ed. 245.
There is no merit in appellees' argument that, if the city charter grants to the city council of Shreveport authority to fluoridate its water supply, such action to that extent is a violation of the Fourteenth Amendment of the United States Constitution. The Fourteenth Amendment does not deprive a state or its subdivisions of the right to preserve order or to protect the health of the people under its police power, and in the exercise of its power the legislative branch may interfere with and impair the individual liberty of the citizens in a manner and to an extent reasonably necessary for the public interest, and the courts will not interfere except where the measures invade fundamental rights or are arbitrary, oppressive, or unreasonable. This is not a proper case for judicial interference. See Cooley on Constitutional Law (4th ed.), p. 289; 2 Cooley's Constitutional Limitations (8th ed.), pp. 1223 et seq.; Jacobson v. Com. of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643; State v. McCormick, 142 La. 580, 77 So. 288, L.R.A.1918C, 262.
For the reasons assigned, the judgment of the district court is reversed and set aside, and plaintiffs' suit is dismissed at their costs.
FOURNET, C. J., and MOISE, J., not participating.

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Board of Health of North Adams v. Mayor of North Adams

Massachusetts, Due Process Violations

Plaintiff

Board of Health of North Adams

Defendant

Mayor of North Adams

State

Massachusetts

Other Parties

-

Case Tags

- Due Process Violations

Citation

368 Mass. 554; 334 N.E.2d 34 (Mass. 1975)

Year

1975-00-00T00:00:00

Court Name

Supreme Judicial Court of Massachusetts

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Kaplan

Opinion Text

KAPLAN, Justice.
The board of health of North Adams (board) sought by the present action to require the mayor and city council of North Adams to make available funds to study, and later to accomplish, the fluoridation of the city's water supply in accordance with the board's order issued on the recommendation of the State Department of Public Health. On a bill for declaratory relief, the case was submitted to the Superior Court as a case stated, and the board prevailed. At the same time the Superior Court dismissed the board's companion bill in equity, on the same case stated, as being unnecessary. The defendants appealed from the decree against them, and the board filed a pro forma appeal from the dismissal. The matters were consolidated and we allowed direct appellate review pursuant to G.L. c. 211A, s 10(A).
In their attack on the judgment, the defendants argue (1) that the board's order was defective because it did not comply with the requirements of G.L. c. 111, s 8C, the basic statute governing water fluoridation in this State; (2) that the wording of the question put in a referendum held under the statute, following issuance of the board's order, was misleading and thereby deprived voters of due process; and (3) that in any event the board of health cannot compel the city council to appropriate funds.
We first summarize the background and purport of G.L. c. 111, s 8C.
Until 1958, there was no general State statute governing fluoridation. The usual language of the acts passed by the General Court to enable cities and towns to provide for the supply of water to their inhabitants gave the localities sufficient authority to fluoridate if the State Department of Public Health approved. See Rep.A.G., Pub.Doc. No. 12, 1953, pp. 33-34.
In 1958, a restriction was imposed. By St.1958, c. 254, codified at G.L. c. 40, s 41B, no locality could fluoridate unless ‘the will of the voters . . . is first ascertained.’ That will could be ascertained by action of the local board of water commissioners placing on the ballor the question, ‘Shall the public water supply for domestic use in (this city) (this town) . . . be fluoridated?’ The public vote, however, was purely advisory. See Scott v. Election Commrs. of Newton, 346 Mass. 388, 391, 193 N.E.2d 262 (1963).
By St.1962, c. 485, s 1, amending G.L. c. 40, s 41B, the advisory public vote above mentioned could only be taken if a petition requesting the vote was signed by five per cent of the voters of the locality. (The same legislation added s 41C, permitting a similar advisory ascertainment of the public will as to the discontinuance of fluoridation on petition by five per cent of the voters.) The requirement of the petition appears to have had the effect of reducing sharply the rate of adoptions of fluoridation by localities.FN1
FN1. See the brief submitted in the present case by the Massachusetts Dental Society, as amicus curiae, at pp. 20-21.
Resolves 1966, c. 66, reflected dissatisfaction with the condition of dental health in the Commonwealth and established a special study commission. The report of the commission (1968 House Doc. No. 3902) FN2 strongly supported fluoridation of water as a means of reducing the incidence of tooth decay. The report specifically recommended ‘(t)hat sections 41B and 41C of chapter 40 of the General Laws be repealed and that instead water fluoridation be instituted at the discretion and recommendation of the State Commissioner of Public Health with the concurrence of the local board of health.’ Id. at 22. The draft bill submitted by the commission to carry out this proposal stated: ‘If the commissioner determines that the fluoride content of the public water supply . . . in any city, town or district is not at optimum level for sound dental health, he shall so notify the local boards of health . . .. Each such board of health . . . shall, if it considers doing so in the best interests of the inhabitants . . . order the upward adjustment of the fluoride content . . ..’
FN2. Report of the Special Commission on the Condition of Dental Health and of Measures to Eliminate Dental Decay Including Fluorition of Community Water Supplies.
This draft bill was the basis of the legislation enacted, St.1968, c. 548, codified at G.L. c. 111, s 8C. Two material additions to the draft appeared in s 8C. First, fluoridation was not to occur where two or more localities were supplied from the same source if independent treatment of the water supply of one locality was not possible and ‘the majority of the boards of health representing such cities and towns have voted not to accept . . . (the State commissioner's) recommendation.’ Second, a procedure was provided for countermanding the order of the board of health by means of a popular vote. An order did not become effective until publication in a local newspaper, and opponents of fluoridation had ninety days following the publication to collect the signatures of ten per cent of the registered voters on a petition requesting that there be placed on the ballot at the next regular city or town election the question, ‘Shall the fluoridation of the public water supply for domestic use in (this city) (this town) be continued?’ If a majority voted no, fluoridation was to be discontinued. (By the same legislation, G.L. c. 40, ss 41B-41C, were repealed. FN3
FN3. The text of G.L. c. 111, s 8C, as then adopted was: ‘The department in taking cognizance of the dental health of the people in the commonwealth shall recommend such methods as in its opinion are advisable to reduce of limit prevalence of dental caries and other dental diseases and defects. If the commissioner determines that the fluoride content of the public water supply for domestic use in any city, town or district is not at optimum level for sound dental health, he shall so notify the local board of health . . .. Such board of health . . . shall, if it considers doing so in the best interest of the inhabitants of the city, town or district . . . order the upward adjustment of the flouride content . . .. No such order shall be effective until it has been published in a newspaper having a general circulation in such city or town.
‘The provisions of this section shall not apply if two or more cities or towns are supplied water from the same source, if such supply to each city or town cannot be treated independently and if the majority of the boards of health representing such cities and towns have voted not to accept such recommendation; provided, however, that any such city or town desiring the adjust upward the fluoride content of . . . (its) water . . . may comply with the order . . . if it does not interfere with the water supply of said other cities or towns.
‘In any city, town or district where the board of health has ordered the upward adjustment of the fluoride content of the water supply under the provisions of this section, upon petition of ten per cent of the registered voters . . . within ninety days of the publication of such order, the following question shall be placed upon the official ballot to be used at the next regular city election or for the election of town officers at the next annual town meeting:-‘Shall the fluoridation of the public water supply for domestic use in (this city) (this town) be continued?’, or in such district the following question shall be placed before the next annual meeting of the inhabitants of the district:-‘Shall the fluoridation of the public water supply for domestic use in this district be continued?’ If the majority of votes . . . is in the negative the flouridation of the water supply . . . shall be discontinued.'
For the effect of an amendment made by St.1971, c. 1024, see n. 6 below.
It was under s 8C, as just described, that the present case arose. On January 2, 1969, the State deputy commissioner of public health, Ernest M. Cook, sent a letter to the North Adams board of health, informing the board that ‘analysis of your public water supply . . . shows the fluoride content to be substantially below the optimum level for sound dental health.’ The board made no immediate response but on July 15, 1971, it approved unanimously an order ‘to augment the fluoride content of the city's water supply to the optimum of 1.0 parts/million recommended by the State Department of Health.’ Seven days later, a notice was published in the North Adams Transcript stating that ‘(t)he Board of Health of North Adams, after making sufficient inquiry into the matter, considers an upward adjustment of the fluoride content of the water supplies . . . to be in the best interest of the inhabitants of the city. Accordingly, it is hereby ordered that an upward adjustment to the optimum level . . . be made . . ..’ Opponents of fluoridation, following the procedure of s 8C, collected within the statutory period the signatures of ten per cent of the registered voters. The statutory question, ‘Shall the fluoridation of the public water supply for domestic use in the City of North Adams be continued?’, was therefore voted on at the November 2, 1971, city election. A majority voted yes. On February 17, 1972, the board asked the mayor to place $2,500 in its budget for a study by a consulting firm of the equipment and procedures needed to fluoridate the water. On March 28, 1972, the mayor complied in presenting a supplemental budget to the city council. The council, however, refused to appropriate the funds. After a second request and refusal by the city council, the board of health commenced the present actions.
1. (a) The defendants say that the notice published in the local newspaper was bad because it differed from the board's order: the order had mentioned the specific fluoride level to be reached, but the notice did not. We think the statutory statement that the ‘order’ be ‘published’ does not require word for word identity. The notice contains the essentials of the board's order and only an expert in fluoridation would be interested in or understand the significance of the precise flouride concentration to be attained. The purpose of the publication was achieved in giving a notice sufficient to stimulate the opposition to collet signatures and present a petition.
(b) The defendants note that North Adams by agreement with Williamstown and Clarksburg provides water to about 228 service connections in the former locality and about fifty-two in the latter (the total of 280 was a very minor fraction of the connections served in North Adams), yet neither the Williamstown nor Clarksburg board of health was notified of the action of the North Adams board or agreed to it. Passing over the fact that no objection to fluoridation from Williamstown or Clarksburg users or the respective boards of health appears in the record, we think the statutory expression ‘if two or more cities or towns are supplied water from the same source’ does not apply to the present case; it refers to a case where two localities share a common supply, not to a case where, by agreement, one locality undertakes to provide water from its own supply as an accommodation to a limited number of users in adjoining communities. Here the water supply was that of North Adams, and the use by Williamstown and Clarksburg residents was incidental.FN4
FN4. In its January, 1969, letter informing the North Adams board of health that the water supply contained too little fluoride, the State Department of Public Health told the board that, in the opinion of its general counsel, ‘(w) ith reference to the arrangement whereby certain premises in Williamstown and Clarksburg are served from your city public water system . . . fluoridation of your water supply is not contingent upon any affirmative action by the Towns of Williamstown and Clarksburg.’
2. The defendants argue, next, that the form of the question put before the voters, as specified by s 8C, namely, ‘Shall the fluoridation of the public water supply for domestic use in the City of North Adams be continued?’, suggested that physical fluoridation had already begun at the time of the vote, which was not the case; therefore, say the defendants, the voters must have been so far misled as to be deprived of due process. We would agree that the Legislature's wording of the question as applied to the particular case was not as felicitous as it might have been, but we do not think the statute prescribing the question can be struck down as unconstitutional. In response to the question, those in favor of fluoridation would vote yes, and those opposed, no. FN5 The question quite properly assumes that when, after the State department has made the necessary recommendation, the board of health promulgates an order, a program of fluoridation has been launched, and the dispute is as to its continuance. Section 8C (as in effect on November 2, 1971) treats the board's order as ‘effective’ on publication, but subject to later discontinuance if a petition should eventuate and the popular vote should turn out to be negative. FN6
FN5. In resolving the question whether, and how, to count ballots not marked by voters in accordance with instructions, so that the intent of the voter is unclear, we have said that ‘if the intent of the voter can be determined with reasonable certainty from an inspection of the ballot, in the light of the generally known conditions attendant upon the lection, effect must be given to that intent and the vote counted in accordance therewith . . ..’ O'Brien v. Election Commrs. of Boston, 257 Mass. 332, 338, 153 N.E. 553, 556 (1926).
FN6. The situation is substantially changed as a result of an amendment to G.L. c. 111, s 8C, by St.1971, c. 1024. This amendment (aside from two changes immaterial for present purposes) delays the nominal effectiveness date of the board order until ninety days after the required publication, and further provides that if a petition for an election is filed within that time, the board order does not become effective until after a favorable vote in the election. The purpose of the amendment, in the words of a message from the Governor returning it without signature for a minor change, ‘is to insure that the vote is taken before the fluoridation may occur.’ 1971 House Doc.No.6418.
Despite this change, no revision was made by the amendment in the wording of the question to be presented to the voters. The amendment also left unchanged the language about ‘discontinuance’ of fluoridation if the vote was negative. These were oversights. In the circumstances, we think the legislative purpose as expressed in the current G.L. c. 111, s 8C, will best be served if in the future voters in a s 8C election are asked, ‘Shall (this city) (this town) fluoridate its public water supply for domestic use?’ This wording is substantially that ordered in Selectmen of Greenfield v. Davoren, No. 13,896, Super.Ct., Franklin County, Massachusetts, October 2, 1974, in an action by a town board of selectmen seeking a change in the statutory wording for an election to be held in November, 1974.
We add that this is not a case where a question or proposition has been prepared in an ad hoc manner and its sufficiency is tested against the command or standard of a statute or constitutional provision calling for the vote. See Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 69 N.E.2d 115 (1946); Tiberio v. Methuen, 364 Mass. --,FNa 307 N.E.2d 302 (1974) (both upholding wording); Sears v. Treasurer & Recr. Gen., 327 Mass. 310, 98 N.E.2d 621 (1951) (holding wording bad). FN7 Here the wording of the question was prescribed by statute and the attack on the question is an attack on the statute on constitutional grounds. Added to the natural reluctance of courts to upset popular elections after the event, there is in the present case the presumption of constitutionality. Pinnick v. Cleary, 360 Mass. 1, 14, 271 N.E.2d 592 (1971). Mobil Oil Corp. v. Attorney Gen., 361 Mass. 401, 412, 280 N.E.2d 406 (1972). Commonwealth v. Henry's Drywall Co., Inc., -- Mass. --, --,FNb 320 N.E.2d 911 (1974). FN8
FNa. Mass.Adv.Sh. (1974) 117.
FN7. Nor is this case like Mayor of Gloucester v. City Clerk of Gloucester, 327 Mass. 460, 464, 99 N.E.2d 452 (1951), in which this court held bad the wording of an election question on whether Gloucester should adopt a Plan E government. There the challenged wording was flatly in error in describing the election of the city council and school committee as being by proportional representation.
FNb. Mass.Adv.Sh. (1974) 2377, 2380.
FN8. There is also the problem, which we may overlook for present purposes, whether the mayor and city council have standing to raise the issue of the possible deprivation of the voters' due process rights. See Ashwander v. Tennessee Valley Authy., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Mullholland v. State Racing Commn., 295 Mass. 286, 292, 3 N.E.2d 773 (1936); Massachusetts Commn. Against Discrimination v. Colangelo, 344 Mass. 387, 392, 182 N.E.2d 595 (1962); Note, Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423 (1974).
While it is hard to match cases, we note that in Scott v. Election Commrs. of Newton, 346 Mass. 388, 193 N.E.2d 262 (1963), we found nothing improper in the collection of signatures on a petition, and the filing of the petition asking to put on the ballot under old G.L. c. 40, s 41C, the question, ‘Shall the fluoridation of the public water supply for domestic use in this city be discontinued?’, where no physical fluoridation had yet occurred when the signatures were collected, though the city had approved and was proceeding with a fluoridation program. Analogy can also be found in Gray v. Taylor, 227 U.S. 51, 33 S.Ct. 199, 57 L.Ed. 413 (1913) (Holmes, J.), where a vote was held on whether to change a county seat from one town to another, but the prescribed statutory form of ballot was ‘For County Seat,’ with a space for the writer to indicate his choice of town. The election was held valid although the ballot failed to indicate that one of the towns was already the county seat. Aside from finding that the omission was not misleading, the court said flatly that ‘it is enough that the statute was followed.’ 227 U.S. at 58, 33 S.Ct. at 202. See also Wycoff v. County Commrs. of the County of Logan, Kansas, 189 Kan. 557, 370 P.2d 138 (1962).
3. It is contended, finally, that the board of health has no power to compel the city council to appropriate money: North Adams has a Plan A government, legislative power, including the power to appropriate funds, being vested in the city council pursuant to G.L. c. 43, s 50. The defendants point further to G.L. c. 44, s 31, providing that ‘(n)o department . . . of any city or town, except Boston, shall incur a liability in excess of the appropriation made for the use of such department, each item recommended by the mayor and voted by the council in cities . . . being considered as a separate appropriation.’
General Laws c. 111, s 8C, can be reconciled with these laws. The Commonwealth has power to order a municipality to pay out funds for public purposes. Thus in Commonwealth v. Hudson, 315 Mass. 335, 52 N.E.2d 566 (1943), we enforced St.1942, c. 8, which provided that ‘(i)f the department of public health determines that, during the existence of the present state of war, it is necessary for a city, town, district or water company maintaining a water supply to provide equipment for such supply . . . for the protection of the public health, said department may order such city, town, district or company to provide such equipment . . ..’ The department, acting under that statute, had ordered Hudson to chlorinate its water supply, but the town meeting had voted not to authorize the commissioners of public works to install the necessary equipment. On a bill in equity brought by the Commonwealth, this court found that the State department had authority to issue its order under the statute, and that the town was not privileged to ignore the order. We enforced the order by directing the town to provide the necessary equipment at the town's expense. We wrote that the town was not in a position ‘to defy . . . the Commonwealth, or to attempt to nullify legislative mandates,’ 315 Mass. at 345, 52 N.E.2d at 573, and accordingly rejected the town's contention, ‘which . . . (was) without precedent in our experience . . . that the power to appropriate money . . . is vested exclusively in the voters at town meeting . . .; that they have a right to act according to their untrammeled judgment, and may refuse to appropriate money even to discharge adjudicated duties or obligations of the town; that the Commonwealth and its courts are powerless unless the voters . . . in town meeting give their approval.’ 315 Mass. at 343-344, 52 N.E.2d at 572. See Horrigan v. Mayor of Pittsfield, 298 Mass. 492, 499, 11 N.E.2d 585, 590 (1937) (‘In the performance of public functions . . . (municipalities) may be required . . . to assume new liabilities without their consent’); Attorney Gen. v. Board of Pub. Welfare of Northampton, 313 Mass. 675, 683-684, 48 N.E.2d 689 (1943) (writ of mandamus issued on petition of Attorney General requiring city to comply with decision of State department of public welfare and render adequate welfare aid to specified individual); Ford v. Retirement Bd. of Lawrence, 315 Mass. 492, 494, 53 N.E.2d 81, 82 (1944) (‘The Legislature may prescribe the terms and conditions of pensions . . . (of firemen, and) place the burden of paying them on cities and towns . . ..’); Director of Div. of Water Pollution Control v. Uxbridge, 361 Mass. 589, 281 N.E.2d 585 (1972) (enforcing division order to town to construct sewerage treatment facility).
The question in each case is thus whether the State enactment is fairly to be read as intending to require municipal outlay. If it is, the arrangement of municipal functions under the city charter or in the town government can have no effect on the result. Further, nothing in the Home Rule Amendment (art. 89 of the Amendments to the Constitution of the Commonwealth) stands in the way, as long as the statute falls within the power reserved to the General Court under s 8 of the Amendment ‘to act in relation to cities and towns . . . by general laws which apply alike to all cities, or to all towns, or to all cities and towns, or to a class of not fewer than two . . ..’ See Director of Div. of Water Pollution Control v. Uxbridge, supra (Massachusetts Clean Waters Act, G.L. c. 21, ss 26-53, is a ‘general law’ under which the State division may order the town to construct a sewer treatment facility); see also Board of Appeals of Hanover v. Housing Appeals Comm. in the Dept. of Community Affairs, 363 Mass. 339, 359-360, 294 N.E.2d 393 (1973).
Nor does G.L. c. 44, s 31, present an obstacle. This provides an important central municipal control on irresponsible spending by departments of local governments, but its function is not to bar local spending that is required by a valid State program. Section 31 regularly has been harmonized with other legislation, as in Lynn Redevelopment Authy. v. Lynn, 360 Mass. 503, 275 N.E.2d 491 (1971), where we read the State urban renewal law as overcoming s 31 to the extent of allowing the city to make contracts for an urban renewal project although there was not at the time an appropriation of the sum necessary to fund the project. FN9
FN9. See also Callahan v. Woburn, 306 Mass. 265, 28 N.E.2d 9 (1940); Ring v. Woburn, 311 Mass. 679, 43 N.E.2d 8 (1942); Hayes v. Brockton, 313 Mass. 641, 48 N.E.2d 683 (1943); Watt v. Chelmsford, 328 Mass. 430, 104 N.E.2d 419 (1952) (G.L. c. 71, governing schools, prevails over s 31 and school committee may bind municipality to pay teacher salaries and other costs despite the lack of a prior appropriation). Cf. Salisbury Water Supply Co. v. Salisbury, 341 Mass. 42, 167 N.E.2d 320 (1960) (s 31 does not prohibit a town department from contracting for services extending beyond a single year, despite the lack of appropriations to cover subsequent years, since otherwise it would be very difficult to contract for, e.g., water service).
Thus the problems posed as to the effect of the general lodging of the power of appropriation in the city council of North Adams under Plan A, and as to the effect of G.L. c. 44, s 31, reduce to the task of discerning whether it is part of the intent of G.L. c. 111, s 8C, that the fluoridation program shall not be defeated by local refusal to loosen the purse strings. An examination of the complex of statutes governing water supply in the Commonwealth suggests that actions by municipalities are by and large checked by the State, and that the State can exercise affirmative control in many circumstances. See G.L. c. 40, s 38, 39B; G.L. c. 111, ss 5, 5G, 17. More directly to the point, as we have indicated, s 8C accords with the scheme of the bill proposed by the special commission in 1968 that ‘water fluoridation be instituted at the discretion and recommendation of the State Commissioner of Public Health with the concurrence of the local board of health.’ The statute thus placed primary authority for the initiation of fluoridation in the hands of the State department. Moreover, it provides that the local board of health, acting on State recommendation, can ‘order’ fluoridation. The word ‘order’ would be inappropriate if it did not comprehend the power to compel appropriation. Without such a power, the board of health could do no more than request the mayor and council to fluoridate a water supply and this, we think, would be a good deal less than the statute intended. FN10 It is significant that whereas the statute makes explicit provision for the public cancelling of a program of fluoridation by means of a referendum vote, no similar power was vested in the local legislative body-the mayor and council. In sum, we read the statute as disclosing the necessary State purpose.
FN10. We do not suggest that, should a board of health request an appropriation that is far in excess of the amount reasonably necessary for the purpose of fluoridation, the mayor and city council could not substitute a lower, adequate figure. There is no suggestion in the present case that the board's request was excessive.
The thought about State ‘purpose’ or ‘intent’ can be expressed in other ways. We can say that the General Court may, when necessary or convenient, delegate a particular job or function to a local body, FN11 the local body becoming for the purpose an ‘agent’ of the State. We held in Breault v. Auburn, 303 Mass. 424, 427-428, 22 N.E.2d 46, 48 (1939), that G.L. c. 111, s 27, giving local boards of health authority to employ necessary personnel, precluded interference by the town meeting in a board decision to discharge an individual. We said that ‘(i)n their conduct with relation to the contract of employment of the plaintiff . . . the members of the board were exercising powers conferred upon them by the Legislature and were . . . not (acting) as agents of the town.’ Accord, Gibney v. Mayor of Fall River, 306 Mass. 561, 29 N.E.2d 133 (1940). FN12 Similarly, the board of health of North Adams may be regarded as a State agent with derivative power to compel funding by the city council for the particular purpose of fluoridation.
FN11. See Police Commr. of Boston v. Boston, 239 Mass. 401, 407, 132 N.E. 181 (1921) (St.1906, c. 291, delegates to police commissioner the power of deciding on the land necessary for police accommodations in Boston); Bradley v. Zoning Adjustment Bd. of Boston, 255 Mass. 160, 171, 150 N.E. 892 (1926) (St.1924, c. 488, s 20, delegates to board of zoning adjustment of Boston power to change boundaries of zoning districts established by Legislature); Rayco Inv. Corp. v. Selectmen of Raynham, 368 Mass. 385, 331 N.E.2d 910 (1975) (Mass.Adv.Sh. (1975) 2375) (G.L. c. 140, s 32B, delegates to local boards of health the power to make rules and regulations to aid in enforcement of mobile home park licensing provisions). See also G.L. c. 111, s 160, permitting the State department of public health to delegate to local boards of health the power to grant and withhold permits required by State department rules for the prevention of pollution.
FN12. See Malden v. MacCormac, 318 Mass. 729, 64 N.E.2d 103 (1945) (board of health acting under power granted to it by G.L. c. 111, ss 31A, 31B, to control local garbage collection is not acting as an agent of the municipality for purposes of determining municipal liability in tort).
4. The Superior Court, acting on the bill for declaratory relief, entered a decree which may be read as somewhat exceeding a declaration and amounting to an order to the city council to provide the necessary funds. In an ordinary case between private parties this might be entirely proper as merely anticipating an application for ‘further relief’ by the party who secured the declaration. See G.L. c. 231A, s 5. But ‘(w)e commonly assume that municipalities and public officers will do their duty when disputed questions have been finally adjudicated.’ Commonwealth v. Hudson, 315 Mass. 335, 343, 52 N.E.2d 566, 572 (1943). Accordingly, the decree on the bill for declaratory relief will be modified so as simply to declare the rights between the parties. The decree of dismissal of the companion equity bill will be affirmed. So ordered.
QUIRICO, Justice (dissenting).
I am unable to agree with the conclusion in point 3 of the court's opinion to the effect that the board of health of the city of North Adams has the power to compel the mayor and city council to appropriate the funds necessary to carry out the board's decision to fluoridate the city's water supply. This decision is tantamount to a holding that as to fluoridation the board is not subject to the fundamental provision of the municipal finance law (G.L. c. 44, s 31, as amended through St.1969, c. 505, s 7) that ‘(no) department financed by municipal revenue, or in whole or in part by taxation, of any city or town, except Boston, shall incur a liability in excess of the appropriation made for the use of such department . . . except in cases of extreme emergency involving the health or safety of persons or property, and then only by a vote in a city of two thirds of the members of the city council, and in a town by a majority vote of all the selectmen.’ The court's decision in this case does not rest on any claimed emergency.
It is unquestionable that the Legislature has the power to authorize the State Department of Public Health to compel municipalities to fluoridate their public water supplies. It is equally unquestionable that if the Legislature gave the department that authority and the department exercised it against a municipality, the order could not be thwarted by the municipality's failure or refusal to appropriate the funds necessary therefor. That was decided by this court in Commonwealth v. Hudson, 315 Mass. 335, 52 N.E.2d 566 (1943), where the department, acting under express authority granted to it by St.1942, c. 8, ordered the town of Hudson to provide treatment equipment for chlorinating its water supply. That statute authorized the department to enter such an order directly against a municipality, leaving the latter no choice or discretion in the matter.
By contrast, the statute relating to fluoridation (G.L. c. 111, s 8C, inserted by St. 1968, c. 548, s 1, and amended by St.1971, c. 1024, ss 1, 2) limits the power of the department to the making of recommendations of ‘such methods as in its opinion are advisable to reduce or limit the prevalence of dental caries and other dental diseases and defects,’ and to notifying a municipality that ‘the fluoride content of . . . (its public water supply for domestic use) is not an optimum level for sound dental health.’ However, the statute gives to the local board of health, and not to the department, the power of ultimate decision whether to fluoridate the water supply. In my opinion there is nothing in the statute which should be construed to exempt the local board's exercise of that power from the provision of G.L. c. 44, s 31, which prohibits each ‘department financed by municipal revenue, or in whole or in part by taxation, of any city or town . . . (from incurring) a liability in excess of the appropriation made for the use of such department.’
I do not believe that the fact that G.L. c. 111, s 8C, authorizes a local board of health to exercise its power thereunder by the issuance of an ‘order’ that the water supply be fluoridated is of any material significance on the applicability of the prohibition contained in G.L. c. 44, s 31. The word ‘order’ is often used to identify or indicate the means by which municipal boards, commissions or officers exercise the powers vested in them by statute, but the use of that word or title has never been held to authorize an expenditure of public funds in excess of the limitations imposed by G.L. c. 44, s 31.
The court's opinion in this case gives to a municipal board of health desiring to order the fluoridation of the public water supply substantially the same degree of fiscal autonomy which has long been enjoyed by school committees is submitting their annual budget requests. The school committees' autonomy is based on the express command of G.L. c. 71, s 34, as appearing in St.1939, c. 294, that ‘(e)very city and town shall annually provide an amount of money sufficient for the support of the public schools as required by this chapter.’ By contrast, the statute relating to fluoridation, G.L. c. 111, s 8C, contains no express statutory command to municipalities to provide the funds therefor when requested by boards of health, and, in my opinion, the statute should not be interpreted as including an implied command to that effect. Decatur v. Auditor of Peabody, 251 Mass. 82, 88-89, 146 N.E. 360 (1925).

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Gorman v. City of New Bedford

Massachusetts, Injunction

Plaintiff

Ruth Gorman

Defendant

City of New Bedford

State

Massachusetts

Other Parties

Citizens of New Bedford, Massachusetts Dental Society

Case Tags

- Injunction

Citation

383 Mass. 57; 417 N.E.2d 433 (Mass. 1981)

Year

1981-01-01T00:00:00

Court Name

Supreme Judicial Court of Massachusetts

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Wilkins JJ

Opinion Text

WILKINS, Justice.
In accord with the requirements of the Home Rule Amendment, art. 2 of the Amendments to the Massachusetts Constitution, as appearing in art. 89 of the Amendments, the city of New Bedford sought and obtained legislative authorization to conduct a vote at its 1979 municipal election on the question whether the city's water supply should continue to be fluoridated. St.1979, c. 243, as amended by St.1979, c. 447. The plaintiffs challenge the lawfulness of the legislation, claiming that the Home Rule Amendment invalidates that special authorization. We see no valid basis for this contention, nor any support for the plaintiffs' other constitutional challenges to the special legislation. Thus, having transferred the plaintiffs' appeal here on our own motion, we affirm that portion of the judgment that declared the special legislation constitutional.
The case was presented on a stipulation of facts, material portions of which we summarize. The individual plaintiffs are taxpayers and inhabitants of New Bedford who support fluoridation in New Bedford. The plaintiff Massachusetts Dental Society, which represents more than 85% of the dentists licensed to practice dentistry in the Commonwealth, supports the fluoridation of public water supplies. In November, 1973, the voters of New Bedford voted (17,515 to 13,813) to approve the fluoridation of the city's public water supply. See G.L. c. 111, s 8C. Implementation of fluoridation was delayed by construction of a new water purifying station. Fluoridation began in New Bedford in 1978. In 1979, in response to petitions from the city, the Legislature passed two acts which collectively authorized New Bedford to place on the city's 1979 official ballot the question whether the fluoridation of the public water supply for domestic use in the city should be continued. St.1979, c. 243 and c. 447.FN2
FN2. Chapter 243 of the Acts of 1979 authorized a vote in New Bedford on the 1980 State ballot, as follows:
“Notwithstanding the provisions of section eight C of chapter one hundred and eleven of the General Laws, the state secretary shall place on the official ballot of the city of New Bedford at the next state biennial election to be held in the year nineteen hundred and eighty the following question: ‘Shall the fluoridation of the public water supply for domestic use in the city of New Bedford be continued?’ If the majority of votes in answer to said question is in the negative, the water supply of said city shall not be fluoridated.”
The second act (St.1979, c. 447), approved about two months later, moved the vote up to the 1979 municipal election. It reads as follows:
“Chapter 243 of the acts of 1979 is hereby amended by striking out the first sentence and inserting in place thereof the following sentence: The city of New Bedford shall place on the official ballot to be used for the election of city officers in said city at the municipal election to be held in the current year the following question: ‘Shall the fluoridation of the public water supply for domestic use in the city of New Bedford be continued?’ ”
This action was commenced in October, 1979, seeking a declaration that the special legislation was unconstitutional and also seeking an injunction against placing the fluoridation question on the 1979 ballot. The injunction request was denied in the form sought, but the city has been enjoined from discontinuing the fluoridation of the public water supply pending the final determination of this action. In the municipal election of November, 1979, the vote was against continued fluoridation (20,181 to 9,912). In December, 1979, the Attorney General was authorized to intervene as a defendant.
1. The plaintiffs' principal argument is that the legislation authorizing New Bedford to conduct a plebiscite on the issue of fluoridation is barred by the Home Rule Amendment. The contention is that the relevant statutes are not special acts relating to local matters, authorized by the Home Rule Amendment, but rather are amendments to the General Laws with Statewide application that may not properly be enacted in response to New Bedford's requests. It is improbable that a constitutional amendment strengthening local control of various matters would contain a new and insidious restriction against the Legislature's authorizing particular action desired by a municipality. Thus, as to the case before us, it seems most unlikely in a practical sense, and just wrong in a theoretical sense, that the Home Rule Amendment would limit the city and the State from agreeing on legislative action authorizing a local plebiscite on fluoridation. A review of the provisions of the Home Rule Amendment shows nothing that restricts the Legislature, on petition of a municipality, from exempting the municipality from the provisions of a General Law. If, as the plaintiffs argue, the two legislative acts were not special laws requiring local initiation but rather were amendments to the General Laws, a point with which we do not agree, the Home Rule Amendment would have no applicability at all to this case. If there is a constitutional problem with enacting a requested special law exempting a municipality from the provisions of a General Law, it lies elsewhere than in the Home Rule Amendment. We, therefore, turn to the plaintiffs' other challenges to the validity of the legislation authorizing New Bedford to conduct a vote on fluoridation.
2. We reject the argument that the special legislation concerning fluoridation in New Bedford violates art. 20 of the Declaration of Rights of the Constitution of the Commonwealth. Article 20 states in effect that only the Legislature may suspend the laws and then only by express suspension. By the special acts, the Legislature explicitly authorized the voters of New Bedford to vote on the fluoridation of the city's water supply. Therefore, assuming that, by giving the New Bedford voters a choice, the special legislation vicariously authorized the suspension of the laws concerning fluoridation, the fact remains that it was the Legislature that authorized the “suspension” and hence no violation of art. 20 is presented in this case. See Commissioner of Pub. Health v. The Bessie M. Burke Memorial Hosp., 366 Mass. 734, 741, 323 N.E.2d 309 (1975). The granting of a local option to accept or reject the provisions of a General Law is not a violation of art. 20 in the absence of a showing that the distinction among municipalities was unreasonable. Opinion of the Justices, 286 Mass. 611, 618-619, 191 N.E. 33 (1934).
3. We also find no merit in the plaintiffs' claim that there was a violation of art. 10 of the Declaration of Rights of the Constitution of the Commonwealth. They contend that it is improper to exempt identifiable individuals from the requirements of the General Laws concerning fluoridation, citing Commissioner of Pub. Health v. The Bessie M. Burke Memorial Hosp., supra 366 Mass. at 742, 743, 323 N.E.2d 309, Paddock v. Brookline, 347 Mass. 230, 232, 197 N.E.2d 321 (1964), and Holden v. James, 11 Mass. 396, 405 (1815). We pass by the point whether on this record the plaintiffs have any standing to assert this art. 10 argument on their own behalf or on behalf of others.
The contention that the special acts concerning New Bedford unfairly provided some individual benefit or disadvantage not otherwise found in the applicable General Laws is unwarranted. There is no general, Statewide mandate that public water supplies be fluoridated. Section 8C of G.L. c. 111 provides for the fluoridation of public water supplies for domestic use upon the order of a local board of health, but preserves the right of the voters to negate the order at the next municipal election if 10% of the registered voters petition for a local plebiscite. See Board of Health of N. Adams v. Mayor of N. Adams, 368 Mass. 554, 556-558, 334 N.E.2d 34 (1975). If there is a negative vote, the municipality may not fluoridate its water supply for at least two years from the date of the negative vote. The special legislation in this case simply gave New Bedford's voters another chance to vote against fluoridating the public water supply. The effect of this limited legislation hardly constitutes the unfair granting of an individual benefit or the denying to an individual of rights generally available to others, and thus does not present any serious question of special legislation in violation of art. 10. The special acts are not shown to do injury to the constitutionally protected interest of any individual. See Commissioner of Pub. Health v. The Bessie M. Burke Memorial Hosp., supra at 744, 334 N.E.2d 34. FN3
FN3. The question is not presented for our determination whether the fluoridation of public water supplies is desirable or undesirable. Certainly, there is no case made, or attempted to be made, that a person is entitled to the fluoridation of his or her drinking water as a matter of constitutional right.
4. We affirm the judge's determination expressed in the judgment that the 1979 special acts were constitutional. The judgment also stated that “the complaint and preliminary injunction are hereby dismissed.” Because the parties are entitled to a declaration of their rights, the complaint should not have been dismissed. We vacate that portion of the judgment that is quoted above. Judgment shall be entered declaring the special acts to be constitutional and dissolving the preliminary injunction.
So ordered.

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Jacobson v. Massachusetts

Massachusetts, State police power

Plaintiff

Jacobson

Defendant

Massachusetts

State

Massachusetts

Other Parties

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Case Tags

- State police power

Citation

197 U.S. 11 (U.S. 1905)

Year

1905-00-00T00:00:00

Court Name

Supreme Court of the United States

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

-

Opinion Text

Mr. Justice Harlan delivered the opinion of the court:
This case involves the validity, under the Constitution of the United States, of certain provisions in the statutes of Massachusetts relating to vaccination.
The Revised Laws of that commonwealth, chap. 75, § 137, provide that ‘the board of health of a city or town, if, in its opinion, it is necessary for the public health or safety, shall require and enforce the vaccination and revaccination of all the inhabitants thereof, and shall provide them with the means of free vaccination. Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit $5.’
An exception is made in favor of ‘children who present a certificate, signed by a registered physician, that they are unfit subjects for vaccination.’ § 139.
Proceeding under the above statutes, the board of health of the city of Cambridge, Massachusetts, on the 27th day of February, 1902, adopted the following regulation: ‘Whereas, smallpox has been prevalent to some extent in the city of Cambridge, and still continues to increase; and whereas, it is necessary for the speedy extermination of the disease that all persons not protected by vaccination should be vaccinated; and whereas, in the opinion of the board, the public health and safety require the vaccination or revaccination of all the inhabitants of Cambridge; be it ordered, that all the inhabitants habitants of the city who have not been successfully vaccinated since March 1st, 1897, be vaccinated or revaccinated.’
Subsequently, the board adopted an additional regulation empowering a named physician to enforce the vaccination of persons as directed by the board at its special meeting of February 27th.
The above regulations being in force, the plaintiff in error, Jacobson, was proceeded against by a criminal complaint in one of the inferior courts of Massachusetts. The complaint charged that on the 17th day of July, 1902, the board of health of Cambridge, being of the opinion that it was necessary for the public health and safety, required the vaccination and revaccination of all the inhabitants thereof who had not been successfully vaccinated since the 1st day of March, 1897, and provided them with the means of free vaccination; and that the defendant, being over twenty-one years of age and not under guardianship, refused and neglected to comply with such requirement.
The defendant, having been arraigned, pleaded not guilty. The government put in evidence the above regulations adopted by the board of health, and made proof tending to show that its chairman informed the defendant that, by refusing to be vaccinated, he would incur the penalty provided by the statute, and would be prosecuted therefor; that he offered to vaccinate the defendant without expense to him; and that the offer was declined, and defendant refused to be vaccinated.
The prosecution having introduced no other evidence, the defendant made numerous offers of proof. But the trial court ruled that each and all of the facts offered to be proved by the defendant were immaterial, and excluded all proof of them.
The defendant, standing upon his offers of proof, and introducing no evidence, asked numerous instructions to the jury, among which were the following:
That § 137 of chapter 75 of the Revised Laws of Massachusetts was in derogation of the rights secured to the defendant by the preamble to the Constitution of the United States, and tended to subvert and defeat the purposes of the Constitution as declared in its preamble;
That the section referred to was in derogation of the rights secured to the defendant by the 14th Amendment of the Constitution of the United States, and especially of the clauses of that amendment providing that no state shall make or enforce any law abridging the privileges or immunities of citizens of the United States, nor deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws; and
That said section was opposed to the spirit of the Constitution.
Each of defendant's prayers for instructions was rejected, and he duly excepted. The defendant requested the court, but the court refused, to instruct the jury to return a verdict of not guilty. And the court instructed structed the jury, in substance, that, if they believed the evidence introduced by the commonwealth, and were satisfied beyond a reasonable doubt that the defendant was guilty of the offense charged in the complaint, they would be warranted in finding a verdict of guilty. A verdict of guilty was thereupon returned.
The case was then continued for the opinion of the supreme judicial court of Massachusetts. Santa Fé Pacific Railroad Company, the exceptions, sustained the action of the trial court, and thereafter, pursuant to the verdict of the jury, he was sentenced by the court to pay a fine of $5. And the court ordered that he stand committed until the fine was paid.
We pass without extended discussion the suggestion that the particular section of the statute of Massachusetts now in question (§ 137, chap. 75) is in derogation of rights secured by the preamble of the Constitution of the United States. Although that preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the government of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution, and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States, unless, apart from the preamble, it be found in some express delegation of power, or in some power to be properly implied therefrom. 1 Story, Const. § 462.
We also pass without discussion the suggestion that the above section of the statute is opposed to the spirit of the Constitution. Undoubtedly, as observed by Chief Justice Marshall, speaking for the court in Sturges v. Crowninshield, 4 Wheat. 122, 202, 4 L. ed. 529, 550, ‘the spirit of an instrument, especially of a constitution, is to be respected not less than its letter; yet the spirit is to be collected chiefly from its words.’ We have no need in this case to go beyond the plain, obvious meaning of the words in those provisions of the Constitution which, it is contended, must control our decision.
What, according to the judgment of the state court, are the scope and effect of the statute? What results were intended to be accomplished by it? These questions must be answered.
The supreme judicial court of Massachusetts said in the present case: ‘Let us consider the offer of evidence which was made by the defendant Jacobson. The ninth of the propositions which he offered to prove, as to what vaccination consists of, is nothing more than a fact of common knowledge, upon which the statute is founded, and proof of it was unnecessary and immaterial. The thirteenth and fourteenth involved matters depending upon his personal opinion, which could not be taken as correct, or given effect, merely because he made it a ground of refusal to comply with the requirement. Moreover, his views could not affect the validity of the statute, nor entitle him to be excepted from its provisions. Com. v. Connolly, 163 Mass. 539, 40 N. E. 862; Com. v. Has, 122 Mass. 40; Reynolds v. United States, 98 U. S. 145, 25 L. ed. 244; Reg. v. Downes, 13 Cox, C. C. 111. The other eleven propositions all relate to alleged injurious or dangerous effects of vaccination. The defendant ‘offered to prove and show be competent evidence’ these socalled facts. Each of them, in its nature, is such that it cannot be stated as a truth, otherwise than as a matter of opinion. The only ‘competent evidence’ that could be presented to the court to prove these propositions was the testimony of experts, giving their opinions. It would not have been competent to introduce the medical history of individual cases. Assuming that medical experts could have been found who would have testified in support of these propositions, and that it had become the duty of the judge, in accordance with the law as stated in Com. v. Anthes, 5 Gray, 185, to instruct the jury as to whether or not the statute is constitutional, he would have been obliged to consider the evidence in connection with facts of common knowledge, which the court will always regard in passing upon the constitutionality of a statute. He would have considered this testimony of experts in connection with the facts that for nearly a century most of the members of the medical profession have regarded vaccination, repeated after intervals, as a preventive of smallpox; that, while they have recognized the possibility of injury to an individual from carelessness in the performance of it, or even in a conceivable case without carelessness, they generally have considered the risk of such an injury too small to be seriously weighed as against the benefits coming from the discreet and proper use of the preventive; and that not only the medical profession and the people generally have for a long time entertained these opinions, but legislatures and courts have acted upon them with general unanimity. If the defendant had been permitted to introduce such expert testimony as he had in support of these several propositions, it could not have changed the result. It would not have justified the court in holding that the legislature had transcended its power in enacting this statute on their judgment of what the welfare of the people demands.' Com. v. Jacobson, 183 Mass. 242, 66 N. E. 719.
While the mere rejection of defendant's offers of proof does not strictly present a Federal question, we may properly regard the exclusion of evidence upon the ground of its incompetency or immateriality under the statute as showing what, in the opinion of the state court, are the scope and meaning of the statute. Taking the above observations of the state court as indicating the scope of the statute,-and such is our duty. Leffingwell v. Warren, 2 Black, 599, 603, 17 L. ed. 261. 262; Morley v. Lake Shore & M. S. R. Co. 146 U. S. 162, 167, 36 L. ed. 925, 928, 13 Sup. Ct. Rep. 54; Tullis v. Lake Erie & W. R. Co. 175 U. S. 348, 44 L. ed. 192, 20 Sup. Ct. Rep. 136; W. W. Cargill Co. v. Minnesota, 180 U. S. 452, 466, 45 L. ed. 619, 625, 21 Sup. Ct. Rep. 423,-we assume, for the purposes of the present inquiry, that its provisions require, at least as a general rule, that adults not under the guardianship and remaining within the limits of the city of Cambridge must submit to the regulation adopted by the board of health. Is the statute, so construed, therefore, inconsistent with the liberty which the Constitution of the United States secures to every person against deprivation by the state?
The authority of the state to enact this statute is to be referred to what is commonly called the police power,-a power which the state did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained frained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and ‘health laws of every description;’ indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states. According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety. Gibbons v. Ogden, 9 Wheat. 1, 203, 6 L. ed. 23, 71; Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 470, 24 L. ed. 527, 530; Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. ed. 989; New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U. S. 650, 661, 29 L. ed. 516, 520, 6 Sup. Ct. Rep. 252; Lawson v. Stecle, 152 U. S. 133, 38 L. ed. 385, 14 Sup. Ct. Rep. 499. It is equally true that the state may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety. The mode or manner in which those results are to be accomplished is within the discretion of the state, subject, of course, so far as Federal power is concerned, only to the condition that no rule prescribed by a state, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument. A local enactment or regulation, even if based on the acknowledged police powers of a state, must always yield in case of conflict with the exercise by the general government of any power it possesses under the Constitution, or with any right which that instrument gives or secures. Gibbons v. Ogden, 9 Wheat. 1, 210, 6 L. ed. 23, 73; Sinnot v. Davenport, 22 How. 227, 243, 16 L. ed. 243, 247; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 626, 42 L. ed. 878, 882, 18 Sup. Ct. Rep. 488.
We come, then, to inquire whether any right given or secured by the Constitution is invaded by the statute as interpreted by the state court. The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.’ Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 471, 24 L. ed. 527, 530; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 628, 629, 42 L. ed. 878-883, 18 Sup. Ct. Rep. 488; Thorpe v. Rutland & B. R. Co. 27 Vt. 148, 62 Am. Dec. 625. In Crowley v. Christensen, 137 U. S. 86, 89, 34 L. ed. 620, 621, 11 Sup. Ct. Rep. 13, we said: ‘The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.’ In the Constitution of Massachusetts adopted in 1780 it was laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for ‘the common good,’ and that government is instituted ‘for the common good, for the protection, safety, prosperity, and happiness of the people, and not for the profit, honor, or private interests of any one man, family, or class of men.’ The good and welfare of the commonwealth, of which the legislature is primarily the judge, is the basis on which the police power rests in Massachusetts. Com. v. Alger, 7 Cush. 84.
Applying these principles to the present case, it is to be observed that the legislature of Massachusetts required the inhabitants of a city or town to be vaccinated only when, in the opinion of the board of health, that was necessary for the public health or the public safety. The authority to determine for all what ought to be done in such an emergency must have been lodged somewhere or in some body; and surely it was appropriate for the legislature to refer that question, in the first instance, to a board of health composed of persons residing in the locality affected, and appointed, presumably, because of their fitness to determine such questions. To invest such a body with authority over such matters was not an unusual, nor an unreasonable or arbitrary, requirement. Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members. It is to be observed that when the regulation in question was adopted smallpox, according to the recitals in the regulation adopted by the board of health, was prevalent to some extent in the city of Cambridge, and the disease was increasing. If such was the situation,-and nothing is asserted or appears in the record to the contrary,-if we are to attach, any value whatever to the knowledge which, it is safe to affirm, in common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease, it cannot be adjudged that the present regulation of the board of health was not necessary in order to protect the public health and secure the public safety. Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case. We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons. Wisconsin, M. & P. R. Co. v. Jacobson, 179 U. S. 287, 301, 45 L. ed. 194, 201, 21 Sup. Ct. Rep. 115; 1 Dill. Mun. Corp. 4th ed. §§ 319-325, and authorities in notes; Freurid, Police Power, §§ 63 et seq. In Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 471-473, 24 L. ed. 527, 530, 531, this court recognized the right of a state to pass sanitary laws, laws for the protection of life, liberty, health, or property within its limits, laws to prevent persons and animals suffering under contagious or infectious diseases, or convicts, from coming within its borders. But, as the laws there involved went beyond the necessity of the case, and, under the guise of exerting a police power, invaded the domain of Federal authority, and violated rights secured by the Constitution, this court deemed it to be its duty to hold such laws invalid. If the mode adopted by the commonwealth of Massachusetts for the protection of its local communities against smallpox proved to be distressing, inconvenient, or objectionable to some,-if nothing more could be reasonably affirmed of the statute in question,-the answer is that it was the duty of the constituted authorities primarily to keep in view the welfare, comfort, and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few. There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government,-especially of any free government existing under a written constitution, to interfere with the exercise of that will. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand. An American citizen arriving at an American port on a vessel in which, during the voyage, there had been cases of yellow fever or Asiatic cholera, he, although apparently free from disease himself, may yet, in some circumstances, be held in quarantine against his will on board of such vessel or in a quarantine station, until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared. The liberty secured by the 14th Amendment, this court has said, consists, in part, in the right of a person ‘to live and work where he will’ ( Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427); and yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense. It is not, therefore, true that the power of the public to guard itself against imminent danger depends in every case involving the control of one's body upon his willingness to submit to reasonable regulations established by the constituted authorities, under the sanction of the state, for the purpose of protecting the public collectively against such danger.
It is said, however, that the statute, as interpreted by the state court, although making an exception in favor of children certified by a registered physician to be unfit subjects for vaccination, makes no exception in case of adults in like condition. But this cannot be deemed a denial of the equal protection of the laws to adults; for the statute is applicable equally to all in like condition, and there are obviously reasons why regulations may be appropriate for adults which could not be safely applied to persons of tender years.
Looking at the propositions embodied in the defendant's rejected offers of proof, it is clear that they are more formidable by their number than by their inherent value. Those offers in the main seem to have had no purpose except to state the general theory of those of the medical profession who attach little or no value to vaccination as a means of preventing the spread of smallpox, or who think that vaccination causes other diseases of the body. What everybody knows the court must know, and therefore the state court judicially knew, as this court knows, that an opposite theory accords with the common belief, and is maintained by high medical authority. We must assume that, when the statute in question was passed, the legislature of Massachusetts was not unaware of these opposing theories, and was compelled, of necessity, to choose between them. It was not compelled to commit a matter involving the public health and safety to the final decision of a court or jury. It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain. It could not properly abdicate its function to guard the public health and safety. The state legislature proceeded upon the theory which recognized vaccination as at least an effective, if not the best-known, way in which to meet and suppress the evils of a smallpox epidemic that imperiled an entire population. Upon what sound principles as to the relations existing between the different departments of government can the court review this action of the legislature? If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution. Mugler v. Kansas, 123 U. S. 623, 661, 31 L. ed. 205, 210, 8 Sup. Ct. Rep. 273; Minnesota v. Barber, 136 U. S. 313, 320, 34 L. ed. 455, 458, 3 Inters. Com. Rep. 185, 10 Sup. Ct. Rep. 862; Atkin v. Kansas, 191 U. S. 207, 223, 48 L. ed. 148, 158, 24 Sup. Ct. Rep. 124.
Whatever may be thought of the expediency of this statute, it cannot be affirmed to be, beyond question, in palpable conflict with the Constitution. Nor, in view of the methods employed to stamp out the disease of smallpox, can anyone confidently assert that the means prescribed by the state to that end has no real or substantial relation to the protection of the public health and the public safety. Such an assertion would not be consistent with the experience of this and other countries whose authorities have dealt with the disease of smallpox.FN1 And the principle of vaccination as a means to prevent the spread of smallpox has been enforced in many states by statutes making the vaccination of children a condition of their right to enter or remain in public schools. Blue v. Beach, 155 Ind. 121, 50 L. R. A. 64, 80 Am. St. Rep. 195, 56 N. E. 89; Morris v. Columbus, 102 Ga. 792, 42 L. R. A. 175, 66 Am. St. Rep. 243, 30 S. E. 850; State v. Hay, 126 N. C. 999, 49 L. R. A. 588, 78 Am. St. Rep. 691, 35 S. E. 459; Abeel v. Clark, 84 Cal. 226, 24 Pac. 383; Bissell v. Davison, 65 Conn. 183, 29 L. R. A. 251, 32 Atl. 348; Hazen v. Strong, 2 Vt. 427; Duffield v. Williamsport School District, 162 Pa. 476, 25 L. R. A. 152, 29 Atl. 742.
FN1 ‘State-supported facilities for vaccination began in England in 1808 with the National Vaccine Establishment. In 1840 vaccination fees were made payable out of the rates. The first compulsory act was passed in 1853, the guardians of the poor being intrusted with the carrying out of the law; in 1854 the public vacinations under one year of age were 408,824 as against an average of 180,960 for several years before. In 1867 a new act was passed, rather to remove some technical difficulties than to enlarge the scope of the former act; and in 1871 the act was passed which compelled the boards of guardians to appoint vaccination officers. The guardians also appoint a public vaccinator, who must be duly qualified to practise medicine, and whose duty it is to vaccinate (for a fee of one shilling and sixpence) any child resident within his district brought to him for that purpose, to examine the same a week after, to give a certificate, and to certify to the vaccination officer the fact of vaccination or of insusceptibility. . . . Vaccination was made compulsory in Bavarla in 1807, and subsequently in the following countries: Denmark (1810), Sweden (1814), Württemberg, Hesse, and other German states (1818), Prussia (1835), Roumania (1874), Hungary (1876), and Servia (1881). It is compulsory by cantonal law in 10 out of the 22 Swiss cantons; an attempt to pass a Federal compulsory law was defeated by a plebiscite in 1881. In the following countries there is no compulsory law, but governmental facilities and compulsion on various classes more or less directly under governmental control, such as soldiers, state employees, apprentices, school pupils, etc.: France, Italy, Spain, Portugal, Belgium. Norway, Austria, Turkey. . . . Vaccination has been compulsory in South Australia since 1872, in Victoria since 1874, and in Western Australia since 1878. In Tasmania a compulsory act was passed in 1882. In New South Wales there is no compulsion, but free facilities for vaccination. Compulsion was adopted at Calcutta in 1880, and since then at 80 other towns of Bengal, at Madras in 1884, and at Bombay and elsewhere in the presidency a few years earlier. Revaccination was made compulsory in Denmark in 1871, and in Roumania in 1874; in Holland it was enacted for all school pupils in 1872. The various laws and administrative orders which had been for many years in force as to vaccination and revaccination in the several German states were consolidated in an imperial statute of 1874.’ 24 Encyclopaedia Britannica (1894), Vaccination.
‘In 1857 the British Parliament received answers from 552 physicians to questions which were asked them in reference to the utility of vaccination, and only two of these spoke against it. Nothing proves this utility more clearly than the statistics obtained. Especially instructive are those which Flinzer compiled respecting the epidemic in Chemnitz which prevailed in 1870-71. At this time in the town there were 64,255 inhabitants, of whom 53,891, or 83.87 per cent, were vaccinated, 5,712, or 8.89 per cent were unvaccinated, and 4,652, or 7.24 per cent, had had the smallpox before. Of those vaccinated 953, or 1.77 per cent, became affected with smallpox, and of the uninocculated 2,643, or 46.3 per cent, had the disease. In the vaccinated the mortality from the disease was 0.73 per cent, and in the unprotected it was 9.16 per cent. In general, the danger of infection is six times as great, and the mortality 68 times as great, in the unvaccinated, as in the vaccinated. Statistics derived from the civil population are in general not so instructive as those derived from armies, where vaccination is usually more carefully performed, and where statistics can be more accurately collected. During the Franco-German war (1870-71) there was in France a widespread epidemic of smallpox, but the German army lost during the campaign only 450 cases, or 58 men to the 100,000; in the French army, however, where vaccination was not carefully carried out, the number of deaths from smallpox was 23,400.’ , Johnson's Universal Cyclopaedia (1897), Vaccination.
‘The degree of protection afforded by vaccination thus became a question of great interest. Its extreme value was easily demonstrated by statistical researches. In England, in the last half of the eighteenth century, out of every 1,000 deaths, 96 occurred from smallpox; in the first half of the present century, out of every 1,000 deaths, but 35 were caused by that disease. The amount of mortality in a country by smallpox seems to bear a fixed relation to the extent to which vaccination is carried out In all England and Wales, for some years previous to 1853, the proportional mortality by smallpox was 21.9 to 1,000 deaths from all causes; in London it was but 16 to 1,000; in Ireland, where vaccination was much less general, it was 49 to 1,000, while in Connaught it was 60 to 1,000. On the other hand, in a number of European countries where vaccination was more or less compulsory, the proportionate number of deaths from smallpox about the same time varied from 2 per 1,000 of all causes in Bohemia, Lombardy, Venice, and Sweden, to 8.33 per 1,000 in Saxony. Although in many instances persons who had been vaccinated were attacked with smallpox in a more or less modified form, it was noticed that the persons so attacked had been commonly vaccinated many years previously. 16 American Cyclopedia, Vaccination (1883).
‘Dr Buchanan, the medical officer of the London Government Board, reported [1881] as the result of statistics that the smallpox death rate among adult persons vaccinated was 90 to a million; whereas among those unvaccinated it was 3,350 to a million; whereas among vaccinated children under five years of age, 42 1/2 per million; whereas among unvaccinated children of the same age it was 5,950 per million.’ Hardway, Essentials of Vaccination (1882). The same author reports that, among other conclusions reached by the Académie de Médicine of France, was one that, ‘without vaccination, hygienic measures (isolation, disinfection, etc.) are of themselves insufficient for preservation from smallpox.’ Ibid.
The Belgian Academy of Medicine appointed a committee to make an exhaustive examination of the whole subject, and among the conclusions reported by them were: 1. ‘Without vaccination, hygienic measures and means, whether public or private, are powerless in preserving mankind from smallpox. . . . 3. Vaccination is always an inoffensive operation when practised with proper care on healthy subjects. . . . 4. It is highly desirable, in the interests of the health and lives of our countrymen, that vaccination should be rendered compulsory.’ Edwards, Vaccination (1882.)
The English Royal Commission, appointed with Lord Herschell, the Lord Chancellor of England, at its head, to inquire, among other things, as to the effect of vaccination in reducing the prevalence of, and mortality from, smallpox, reported, after several years of investigation: ‘We think that it diminishes the liability to be attacked by the disease; that it modifies the character of the disease and renders it less fatal,-of a milder and less severe type; that the protection it affords against attacks of the disease is greatest during the years immediately succeeding the operation of vaccination.’
The latest case upon the subject of which we are aware is Viemester v. White, decided very recently by the court of appeals of New York. That case involved the validity of a statute excluding from the public schools all children who had not been vacinated. One contention was that the statute and the regulation adopted in exercise of its provisions was inconsistent with the rights, privileges, and liberties of the citizen. The contention was overruled, the court saying, among other things: ‘Smallpox is known of all to be a dangerous and contagious disease. If vaccination strongly tends to prevent the transmission or spread of this disease, it logically follows that children may be refused admission to the public schools until they have been vaccinated. The appellant claims that vaccination does not tend to prevent smallpox, but tends to bring about other diseases, and that it does much harm, with no good. It must be conceded that some laymen, both learned and unlearned, and some physicians of great skill and repute, do not believe that vaccination is a preventive of smallpox. The common belief, however, is that it has a decided tendency to prevent the spread of this fearful disease, and to render it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of the people, as well as by most members of the medical profession. It has been general in our state, and in most civilized nations for generations. It is generally accepted in theory, and generally applied in practice, both by the voluntary action of the people, and in obedience to the command of law. Nearly every state in the Union has statutes to encourage, or directly or indirectly to require, vaccination; and this is true of most nations of Europe. . . . A common belief, like common knowledge, does not require evidence to establish its existence, but may be acted upon without proof by the legislature and the courts.. . . The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive; for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free country, where the government is by the people, through their chosen representatives, practical legislation admits of no other standard of action, for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not. Any other basis would conflict with the spirit of the Constitution, and would sanction measures opposed to a Republican form of government. While we do not decide, and cannot decide, that vaccination is a preventive of smallpox, we take judicial notice of the fact that this is the common belief of the people of the state, and, with this fact as a foundation, we hold that the statute in question is a health law, enacted in a reasonable and proper exercise of the police power.’ 179 N. Y. 235, 72 N. E. 97.
Since, then, vaccination, as a means of protecting a community against smallpox, finds strong support in the experience of this and other countries, no court, much less a jury, is justified in disregarding the action of the legislature simply because in its or their opinion that particular method was-perhaps, or possibly-not the best either for children or adults.
Did the offers of proof made by the defendant present a case which entitled him, while remaining in Cambridge, to claim exemption from the operation of the statute and of the regulation adopted by the board of health? We have already said that his rejected offers, in the main, only set forth the theory of those who had no faith in vaccination as a means of preventing the spread of smallpox, or who thought that vaccination, without benefiting the public, put in peril the health of the person vaccinated. But there were some offers which it is contended embodied distinct facts that might properly have been considered. Let us see how this is.
The defendant offered to prove that vaccination ‘quite often’ caused serious and permanent injury to the health of the person vaccinated; that the operation ‘occasionally’ resulted in death; that it was ‘impossible’ to tell ‘in any particular case’ what the results of vaccination would be, or whether it would injure the health or result in death; that ‘quite often’ one's blood is in a certain condition of impurity when it is not prudent or safe to vaccinate him; that there is no practical test by which to determine ‘with any degree of certainty’ whether one's blood is in such condition of impurity as to render vaccination necessarily unsafe or dangerous; that vaccine matter is ‘quite often’ impure and dangerous to be used, but whether impure or not cannot be ascertained by any known practical test; that the defendant refused to submit to vaccination for the reason that he had, ‘when a child,’ been caused great and extreme suffering for a long period by a disease produced by vaccination; and that he had witnessed a similar result of vaccination, not only in the case of his son, but in the cases of others.
These offers, in effect, invited the court and jury to go over the whole ground gone over by the legislature when it enacted the statute in question. The legislature assumed that some children, by reason of their condition at the time, might not be fit subjects of vaccination; and it is suggested-and we will not say without reason-that such is the case with some adults. But the defendant did not offer to prove that, by reason of his then condition, he was in fact not a fit subject of vaccination at the time he was informed of the requirement of the regulation adopted by the board of health. It is entirely consistent with his offer of proof that, after reaching full age, he had become, so far as medical skill could discover, and when informed of the regulation of the board of health was, a fit subject of vaccination, and that the vaccine matter to be used in his case was such as any medical practitioner of good standing would regard as proper to be used. The matured opinions of medical men everywhere, and the experience of mankind, as all must know, negative the suggestion that it is not possible in any case to determine whether vaccination is safe. Was defendant exempted from the operation of the statute simply because of his dread of the same evil results experienced by him when a child, and which he had observed in the cases of his son and other children? Could he reasonably claim such an exemption because ‘quite often,’ or ‘occasionally,’ injury had resulted from vaccination, or because it was impossible, in the opinion of some, by any practical test, to determine with absolute certainty whether a particular person could be safely vaccinated?
It seems to the court that an affirmative answer to these questions would practically strip the legislative department of its function to care for the public health and the public safety when endangered by epidemics of disease. Such an answer would mean that compulsory vaccination could not, in any conceivable case, be legally enforced in a community, even at the command of the legislature, however widespread the epidemic of smallpox, and however deep and universal was the belief of the community and of its medical advisers that a system of general vaccination was vital to the safety of all.
We are not prepared to hold that a minority, residing or remaining in any city or town where smallpox is prevalent, and enjoying the general protection afforded by an organized local government, may thus defy the will of its constituted authorities, acting in good faith for all, under the legislative sanction of the state. If such be the privilege of a minority, then a like privilege would belong to each individual of the community, and the spectacle would be presented of the welfare and safety of an entire population being subordinated to the notions of a single individual who chooses to remain a part of that population. We are unwilling to hold it to be an element in the liberty secured by the Constitution of the United States that one person, or a minority of persons, residing in any community and enjoying the benefits of its local government, should have the power thus to dominate the majority when supported in their action by the authority of the state. While this court should guard with firmness every right appertaining to life, liberty, or property as secured to the individual by the supreme law of the land, it is of the last importance that it should not invade the domain of local authority except when it is plainly necessary to do so in order to enforce that law. The safety and the health of the people of Massachusetts are, in the first instance, for that commonwealth to guard and protect. They are matters that do not ordinarily concern the national government. So far as they can be reached by any government, they depend, primarily, upon such action as the state, in its wisdom, may take; and we do not perceive that this legislation has invaded any right secured by the Federal Constitution.
Before closing this opinion we deem it appropriate, in order to prevent misapprehension as to our views, to observe-perhaps to repeat a thought already sufficiently expressed, namely-that the police power of a state, whether exercised directly by the legislature, or by a local body acting under its authority, may be exerted in such circumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression. Extreme cases can be readily suggested. Ordinarily such cases are not safe guides in the administration of the law. It is easy, for instance, to suppose the case of an adult who is embraced by the mere words of the act, but yet to subject whom to vaccination in a particular condition of his health or body would be cruel and inhuman in the last degree. We are not to be understood as holding that the statute was intended to be applied to such a case, or, if it was so intended, that the judiciary would not be competent to interfere and protect the health and life of the individual concerned. ‘All laws,’ this court has said, ‘should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter.’ United States v. Kirby, 7 Wall. 482, 19 L. ed. 278; Lau Ow Bew v. United States, 144 U. S. 47, 58, 36 L. ed. 340, 344, 12 Sup. Ct. Rep. 517. Until otherwise informed by the highest court of Massachusetts, we are not inclined to hold that the statute establishes the absolute rule that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject of vaccination, or that vaccination, by reason of his then condition, would seriously impair his health, or probably cause his death. No such case is here presented. It is the cause of an adult who, for aught that appears, was himself in perfect health and a fit subject of vaccination, and yet, while remaining in the community, refused to obey the statute and the regulation adopted in execution of its provisions for the protection of the public health and the public safety, confessedly endangered by the presence of a dangerous disease.
We now decide only that the statute covers the present case, and that nothing clearly appears that would justify this court in holding it to be unconstitutional and inoperative in its application to the plaintiff in error.
The judgment of the court below must be affirmed.
It is so ordered.
Mr. Justice Brewer and Mr. Justice Peckham dissent.

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Scott v. Board of Election Commissioners of Newton

Massachusetts

Plaintiff

Wellington F. Scott

Defendant

Board of Election Commissioners of Newton

State

Massachusetts

Other Parties

Harold M. Band

Case Tags

-

Citation

346 Mass. 388; 193 N.E.2d 262 (Mass. 1963)

Year

1963-00-00T00:00:00

Court Name

Supreme Judicial Court Massachusetts

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Wilkins CJ

Opinion Text

WILKINS, Chief Justice.
These two cases are directed against the ascertainment of the will of the voters of the city of Newton as to the discontinuance of fluoridation of the public water supply for domestic use. The first case is a petition for a writ of mandamus by five citizens and residents of the city to command the respondent board of election commissioners to refrain from placing upon the ballot at a municipal election to be held on November 5, 1963, the question prescribed by G.L. c. 40, § 41C, inserted by St.1962, c. 485, § 1. FN1 The second case is a petition by not less than ten taxable inhabitants of the city to restrain the respondent board from incurring any obligations or expending any moneys for checking or certifying the signatures on a petition of registered voters seeking to have the question placed upon the official ballot, from printing the question on the ballot, from giving notice of the question to the voters, and from paying for the counting of the votes. G.L. (Ter.Ed.) c. 40, § 53.
FN1. § 41C. ‘Upon petition of five per cent of the registered voters of a city... in which the public water supply for domestic use is being floridated by such city...the following question shall be placed upon the official ballot to be used at the next regular municipal election... :-‘Shall the fluoridation of the public water supply for domestic use in (this city)... be discontinued?’... If a majority of the votes in answer to said question is in the affirmative, it shall be deemed and taken to be the will of the voters...that fluoridation of the public water supply for domestic use shall be discontinued, and if a majority of said votes is in the negative, it shall be deemed and taken to be the will of said voters that such supply shall continue to be fluoridated.'
The cases were heard upon similar statements of agreed facts meeting the requirements of a case stated. The judge decided in favor of the respondent board. In the first case the judge entered an ‘order for final judgment,’ which provided ‘that final judgment be entered for the respondents dismissing the petition without costs and with prejudice.’ The petitioners appealed. In the second case a ‘final decree’ was entered in which the judge stated, ‘I find and declare that the respondents, as members of the Board of Election Commissioners of the City of Newton, have acted in accordance with G.L. c. 40, § 41C, in preparing to place upon the ballot at the next municipal election the question set out in said section.’ The petitioners filed a claim of appeal ‘from the final decree dismissing the petition.’
In November, 1961, at a municipal election a majority of the voters of Newton voted in the affirmative on the question, ‘Shall the public water supply for domestic use in this city be fluoridated?‘ Thereafter the board of aldermen appropriated about $180,000, and installation of equipment commenced in February, 1963. Because of unavoidable delays the installation did not become complete and none of the public water supply actually contained fluorine until September 12, 1963, on which date the water from one of the three pumping stations of the city contained fluorine. The water commissioner stated that the water supply for the entire city would contain fluorine by October 1. The respondent board determined that September 10 should be the last day for filing petitions to place upon the official ballot to be used at the election on November 5 the question, ‘Shall the fluoridation of the public water supply for domestic use in this city be discontinued?‘ Between August 30 and September 10 petitions purporting to be signed by approximately 5,000 voters were filed with the respondent board, which by September 10 had certified as correct approximately 2,800, which is more than five per cent of the registered voters plus one fifth thereof. The last practicable date for arranging for printing ballots was October 5.
Accordingly, the question will be on the ballot. At most, the only relief now open would be to enjoin the count and tabulation of the votes.
The core of the argument of the petitioners is that the authorization for the vote upon a petition by registered voters is limited to a city ‘in which the public water supply for domestic use is being fluoridated by such city.’ G.L. c. 40, § 41C. It is argued that when the signatures were obtained, which was not later than September 10, there ws no actual fluoridation. That the fluoridation must be taken to have been completed by October 1, more than a month before the election, is said to be unimportant. We are unable to perceive in the language of the act the legislative intent contended for. We think that the right to seek an expression of the will of the voters has not been limited to a situation where there had been at least one day's fluoridation when the signatures were collected or the petitions filed.
The petitioners refer to St. 1962, c. 485, § 2, which provides that G.L. c. 40, § 41B, inserted by § 1 of c. 485, ‘shall not be construed to prohibit the fluoridation of a public water supply for domestic use by a city...in which, upon the effective date of this act, such water supply is being fluoridated or in which, in accordance with the provisions of section forty-one B of chapter forty of the General Laws, as in effect prior to said effective date, it has been voted to fluoridate such supply.’ We do not observe an intent to draw a fundamental distinction between ‘water supply is being fluoridated’ and ‘it has been voted to fluoridate such supply.’ There surely is no distinction of significant application to the question before us.
For whatever it may be worth, it may be noted that the ascertainment of the will of the voters is informative only. The actual determination whether there shall be fluoridation is in the sole power of the appropriate municipal officers. What heed they might give to a purely advisory vote is beside the point.
This is the opinion of a majority of the court.
The rulings of the court below were correct. In the first case judgment is to be entered dismissing the petition. In the second case the decree is affirmed.
So ordered.

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Miller v. City of Evansville

Indiana

Plaintiff

Miller et al.

Defendant

City of Evansville et al.

State

Indiana

Other Parties

-

Case Tags

-

Citation

247 Ind. 563; 219 N.E.2d 900 (Ind. 1966)

Year

1966-00-00T00:00:00

Court Name

Supreme Court of Indiana

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Jackson JM

Opinion Text

JACKSON, Judge.
This is an appeal from the denial of an injunction sought by appellants in a taxpayer's action for the purpose of restraining defendants-appellees from placing in the water supply of the City of Evansville, Indiana, fluorides which appellants contend would produce irreparable injury and would further be a violation of their constitutional rights as guaranteed by the First and Fourteenth Amendments to the Constitution of the United States and the Bill of Rights of the Constitution of the State of Indiana.
The issues were formed by the complaint in twenty-eight rhetorical paragraphs, the supplemental complaint and the answers to the original and supplemental complaints.
Appellants' Assignment of Errors is the single specification that ‘(t)he Court erred in overruling appellant's Motion for a New Trial.’
The evidence of the witnesses produced at the trial, pro and con, is quite voluminous and in the opinion of the writer need not be set out, or even commented on at length as there is a diversity of opinion as to the necessity or efficacy of the proposed fluoridation. The proponents urging the medical desirability thereof in the treatment of dental caries in that portion of the populace between the ages of six and twelve; the opponents thereof urging the deleterious effect of such treatment on the aged and ill, the violation of constitutional rights and religious freedom. The parties have, by stipulation, fixed boundaries and limitations we need not exceed.
Such stipulation contained the following paragraph:
‘There is not now nor has there ever been a city ordinance in the City of Evansville, duly enacted by the Common Council of the City of Evansville, authorizing or directing the City of Evansville, or the defendants, Glen L. Ogle, Sr., Karl Hahus, Arthur P. Walling and Arthur R. Lastwood (sic), who are the Trustees constituting the Board of Trustees of the Evansville, Indiana Waterworks Department to fluoride the drinking water in the City of Evansville.’
The status relative to the general powers of cities and towns that are applicable to the case at bar are as follows:
‘Authority or power-How made effectual.-Wherever there is a grant of authority or power conferred by any section or sections of this act upon any officer or board of any city or town, and no method is provided herein for the exercise of such authority or power, and a method for the exercise of such authority or power is necessary to be provided by law to make such grant of authority or power effectual, and a method for the exercise of such or similar authority or power is provided by any other section or sections of this act, or by any other law of this state applicable to the exercise of the authority so granted, then such other section or sections, or other law, so far as the same provide a method for the exercise of such authority or power herein conferred, may be followed as fully as if incorporated in and made a part of the provisions of this act granting such authority or power. And wherever there is a grant or authority or power conferred by this act, and no method is provided by this act or by any other general law, as herein referred to, for the exercise of such authority or power, the common council of any city or the board of trustees of any town may, by ordinance, provide such method.’ Acts 1905, ch. 129, s 270, p. 219, s 48-501, Burns' 1963 Replacement.
‘Legislative authority.-The legislative authority of every city shall be vested in a common council.’ Acts 1905, ch. 129, s 47, p. 219, s 48-1401, Burns' 1963 Replacement.
‘Legislative power-Appropriations.-The common council of every city shall have power to pass all ordinances, orders, resolutions and motions for the government of such city, for the control of its property and finances and for the appropriation of money. ...’ Acts 1905, ch. 129, s 52, p. 219, s 48-1406, Burns' 1963 Replacement.
‘General power of council.-The common council of every city shall have power to enact ordinances for the following purposes:
‘Ninth. To authorize the cleansing and purification of water and water courses by the board of public works, or other designated authority; to prevent encroachment of injury to the banks of streams, or the casting into the same of offal, dead animals, logs, rubbish, dirt or impure liquids. For the purpose of this clause, jurisdiction is hereby conferred upon cities for ten (10) miles from the corporate limits thereof.
‘Eighteenth. To regulate and require reports and records of births and deaths, and to make such requirements as may be deemed necessary to prevent the spread of contagious or infectious diseases; and to make all regulations that may be deemed expedient for the promotion of health and the suppression of disease.’ Acts 1905, ch. 129, s 53, p. 219, s 48-1407, Burns' 1963 Replacement.
It is quite clear and beyond question that the powers and duties devolving upon municipalities pursuant to the appropriate statutes provide for the exercise of the police powers necessary for the development, operation and continued functioning of the municipality.
In the case at bar only the common council of the City of Evansville, Indiana, possessed the power, under appropriate proceedings, to enact the ordinance or ordinances providing for the fluoridation of the city water provided by appellee city. The stipulation entered into shows conclusively that the common council of the City of Evansville has not exercised this power and consequently no authority exists by which fluoridation can be instituted.
This cause is reversed and remanded with instructions to sustain appellants' Motion for New Trial and for further proceedings not inconsistent with this opinion.
MYERS, J., concurs.
ARTERBURN, J., concurs in result.
RAKESTRAW, C.J., and ACHOR, J., not participating.

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Hattie v. Thomas

Ohio

Plaintiff

Mary A. Hattie, et al.

Defendant

Lee M. Thomas, Administrator of the Environmental Protection Agency

State

Ohio

Other Parties

-

Case Tags

-

Citation

22 ERC (BNA) 1728 (N.D. Ohio 1985)

Year

1985-00-00T00:00:00

Court Name

United States District Court for the Northern District of Ohio, Eastern Division

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Bell SH

Opinion Text

SAM H. BELL, UNITED STATES DISTRICT JUDGE
On January 15, 1985, the plaintiffs filed the above-entitled action against the Administrator of the Environmental Protection Agency (hereinafter EPA). The plaintiffs are six residents of Canton, Ohio who are seeking to have the EPA bring an action against the State of Ohio to stop the fluoridation of the Canton municipal water supply. Jurisdiction of this court is alleged under the Safe Drinking Water Act of 1974, 42 U.S.C. § 300f, et seq., and the court's mandamus jurisdiction pursuant to 28 U.S.C. § 1361.
Presently before the court is a motion to dismiss or in the alternative motion for summary judgment filed by EPA on March 15, 1985. The EPA asserts that the court lacks subject matter jurisdiction over this action and that the complaint fails to state a claim upon which relief can be granted. For purposes of reviewing this motion to dismiss all of the material allegations of fact contained in the plaintiff's complaint are to be taken by the court as admitted. Worth v. Seldin, 422 U.S. 490 (1975); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Gardner v. Torlet Goods Ass'n, 387 U.S. 167, 172 (1967). A summary of the material facts construed in this manner follows.
In March, 1984, the City of Canton began to add fluoride to the public water supply in order to maintain the fluoride level of not less than .8 milligrams or more than 1.3 milligrams per liter of water. This fluoridation was mandated by the State of Ohio pursuant to O.R.C. § 6109.20 which states as follows:
§ 6109.20 [Fluoride to be added to public water system.]
If the natural fluoride content of supplied water of a public water system is less than eight-tenths milligrams per liter of water, fluoride shall be added to such water to maintain fluoride content of not less than eight-tenths milligrams per liter of water nor more than one and three-tenths milligrams per litter of water begining:
(A) On or before Januaary 1, 1971, for a public water system supplying water to twenty thousand or more persons;
(B) On or before January 1, 1972, for a public water system supplying water to five thousand or more persons, but less than twenty thousand persons.
It is undisputed that the City of Canton public water system serves a sufficient number of persons to come under the requirements of this statute. Further, there is no allegation that the City of Canton is maintaining a fluoride content different than the levels set forth in O.R.C. § 6109.20.
On July 3, 1984, the plaintiffs wrote to the EPA and claimed that the State of Ohio and the City of Canton had violated the Safe Drinking Water Act of 1974 by placing fluoride in the Canton public water supply. The plaintiffs asserted that the mandatory addition of fluoride to the public water supply would create a hazard to the future health and well being of the residents served by the Canton water supply. The EPA responded on August 27, 1984 and informed the plaintiffs that the State of Ohio and the City of Canton did not violate federal law by requiring mandatory fluoridation. Thereafter, the EPA took no action to enjoin the fluoridation of the Canton water supply.
Federal district courts created under article III of the United States Constitution are courts of limited subject mater jurisdiction. Hagans v. Lavine, 415 U.S. 538 (1974). A federal court's jurisdiction is derived from the Constitution, but Congress is empowered to decide the extent of original subject matter jurisdiction that is to be conferred upon the district courts. Id. As a result of this limitation, any action taken by a district court is only entitled to enforcement if the court has jurisdiction over the subject matter.
In light of the limitations placed on a district court's jurisdiction, when a court considers a motion to dismiss raising several grounds for dismissal, the first issue which must be addressed is whether subject matter jurisdiction is proper. Consideration of any other alleged grounds for dismissal would be improper until the court has determined that jurisdiction is present in the action. Tuck v. Pan American Health Organization, 668 F.2d 547 (D.C. Cir. 1981); Memphis Am. Fed. of Tchrs., L. 2032 v. Board of Ed., 534 F.2d 699 (6th Cir. 1976). The burden of proving that subject matter jurisdiction is present in the district court is upon the party asserting jurisdiction, which in this action would be the plaintiffs. McNutt v. General Motors Acceptance Corp., 298 U.S. 178 (1936).
The plaintiffs state in their complaint and in their brief in opposition to the E.P.A.'s motion, that subject matter jurisdiction over their claims has been conferred on this court by the express authorization of Congress. The plaintiffs assert that jurisdiction is proper pursuant to the Safe Drinking Water Act of 1974, 42 U.S.C. § 300j-8(a), which provides in part as follows:
(a) Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf -
(1) against any person (including (A) the United States, and (B) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any requirement prescribed by or under this subchapter, or
(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this subchapter which is not discretionary with the Administrator. (Emphasis added.)
This statute expressly authorizes subject matter jurisdiction in the federal district courts over suits against the Administrator of the Environmental Protection Agency when there is an alleged failure of the EPA to perform an act or duty which is non-discretionary. Thus, before this court may exert subject matter jurisdiction over this action, it must be found that the EPA has a mandatory duty to enjoin the State of Ohio and the City of Canton from fluoridating the water or has failed to perform some non-discretionary act or duty.
Under the Safe Drinking Water Act of 1974 the EPA is required to establish national primary drinking water regulations which "specifies contaminants which, in the judgment of the Administrator, may have any adverse effect on the health of persons." 42 U.S.C. § 300F(1)(B). This authority is vested solely in the EPA and is set forth as follows:
(a)(1)The Administrator shall publish proposed national interim primary drinking water regulations within 90 days after December 16, 1974. Within 180 days after December 16, 1974, he shall promulgate such regulations which such modifications as he deems appropriate. Regulatoins under this paragraph may be amended from time to time.
(2) National interim primary drinking water regulations promulgated under paragraph (1) shall protect health to the extent feasible, using technology, treatment techniques, and other mens, which the Administrator determines are generally available (taking costs into consideration) on December 16, 1974.
(3) The interim primary regulations first promulgated under paragraph (1) shall take effect eighteen months after the date of their promulgation.
42 U.S.C. § 300g-1(a). Pursuant to this rule-making authority granted by Congress, a primary interim regulation was promulgated on December 24, 1975 involving the "maximum contaminant level" of fluoride in a public water system. 40 Fed. Reg. 59570. A "maximum contaminant level" is defined in the Act as "the maximum permissible level of a contaminant in water which is delivered to any user of a public water system." 42 U.S.C. § 300F(2).
The primary interim regulation promulgated on December 24, 1975 established that the maximum contaminant level for fluoride was from 1.4 to 2.4 milligrams per liter. This regulation involving the maximum contaminant level for fluoride has been specifically deemed to be within the discretion of the EPA and has been upheld on appeal. Environmental Defense Fund, Inc. v. Costle. 578 F.2d 337, 346 (D.C. Cir. 1978). Thereafter, the primary interim regulation for fluoride was amended by the EPA to state that the "optimum levels" for the reduction of tooth decay would be a fluoride level of .7 to 1.4 milligrams per liter of water. 40 Fed. Reg. 59570. The plaintiffs do not challenge the authority of the EPA to set primary interim regulations nor do they dispute the propriety of the EPA's determination of the maximum contaminant level or optimum level for fluoride.
Once regulations involving the maximum contaminant level for fluoride were enacted by the EPA, a state could obtain primary enforcement responsibility for public water systems by adopting drinking water regulations that conform to these regulations. The Safe Drinking Water Act expressly provides that a state may obtain primary responsibility under the following conditions.
(a) For purposes of this subchapter, a State has primary enforcement responsibility for public water systems during any period for which the Administrator determines . . . that such State -
(1) has adopted drinking water regulations which (A) in the case of the period beginning on the date the national interim primary drinking water regulations are promulgated under section 300g-1 of this title and ending on the date such regulations take effect are no less stringent than such regulations, and (B) in the case of the period after such effective date are no less stringent than the interim and revised national primary drinking water regulations in effect under such section; (Emphasis added.)
42 U.S.C. § 300g-1(a)(1). In this action it is undisputed that the State of Ohio has enacted such regulations and has primary enforcement responsibility for the public water systems within the state.
Whenever the EPA discovers that a state which has primary enforcement responsibility for its public water systems "does not comply with any national primary drinking water regulation in effect under section 300g-1 of this title . . . he, [the Administrator] shall so notify the State and provide such advise and technical assistance to such State and public water system as may be appropriate to bring the system into compliance with such regulation or requirement by the earliest feasible time." 42 U.S.C. § 300g-3(a)(1)(A). The plaintiffs assert that this statute creates a mandatory, non-discriminatory duty with the EPA to notify the state of non-conformance whenever a state regulation violates a primary drinking water regulation. The plaintiffs further assert that the EPA was required to notify the State of Ohio of a violation of the primary drinking regulations because of the alleged improper mandatory fluoridation of the Canton public water system. Thus, the salient issues before this court in determining subject matter jurisdiction are whether the EPA had a mandatory duty to notify the State of Ohio in this setting and whether Ohio's statute requiring mandatory fluoridation of the public water supplies violates the Safe Drinking Water Act or any regulation promulgated thereunder by the EPA.
The mandatory duty to notify the State of Ohio of non-compliance alleged by the plaintiffs on the part of the EPA is based upon the language found in 42 U.S.C. § 300g-3(a)(1)(A) set forth above. However, a complete reading of the statute shows that the EPA "may bring a civil action in the appropriate United States district court to require compliance with a national primary drinking water regulation." (Emphasis added.). 42 U.S.C. § 300g-3(b). This language in the statute clearly vests absolute prosecutorial discretion in the EPA on when to seek compliance with any maximum contaminant level promulgated by regulation. Thus, Congress has expressly stated that enforcement of the regulations promulgated by the EPA shall be an action that is discretionary and would not be subject to an action brought pursuant to 42 U.S.C. § 300j-8(a). Hence, the plaintiffs cannot rely upon the Safe Drinking Water Act to confer subject matter jurisdiction in this court.
In addition to the plaintiffs failure as a matter of law to allege a violation by the EPA of some non-discretionary duty or act, the Ohio statute in question does not violate the Safe Drinking Water Act or any regulation promulgated thereunder by the EPA. Although the Safe Drinking Water Act does not require mandatory fluoridation of the nation's public water supplies, there is nothing in the Act which prevents the various states from enacting mandatory fluoridation of the public water supplies within the jurisdiction of the state. The sole restriction placed upon the various states is that any regulation enacted cannot be "less stringent than" the primary drinking water regulations promulgated by the EPA. 42 U.S.C. § 300g-1(a)(1).
In this action, the State of Ohio has enacted a mandatory fluoridation statute which does not violate federal law. The Ohio state legislature has determined that the fluoride levels in the public water supplies in the state may not be less than .8 milligrams or more than 1.3 milligrams per liter of water. This mandatory fluoride level set by the State of Ohio is not less stringent than the maximum contaminant level established by the EPA; therefore the statute does not as a matter of law violate the Safe Drinking Water Act.
The plaintiffs have also claimed that subject matter jurisdiction is proper under the court's mandamus jurisdiction under 28 U.S.C. § 1361. However, mandamus is an extraordinary remedy and may only issue to compel a federal officer to perform a non-discretionary action. Associated Businesses of Franklin v. Warren, 522 F.Supp. 115 (S.D. Ohio 1981). Since the court has previously found that the actions set forth in the complaint are within the prosecutorial discretion of the EPA and that no violation as a matter of law of the Safe Drinking Water Act was alleged, there is no basis for mandamus jurisdiction.
Also before the court is a motion to intervene filed by the State of Ohio. The state asserts that since its statute is being questioned it should have been named as a defendant in this action. However, for the reasons set forth above, this motion is now rendered moot.
Accordingly, the EPA motion to dismiss is hereby granted and this case is dismissed.
IT IS SO ORDERED.

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Natural Resources Defense Council, Inc. v. EPA

District of Columbia

Plaintiff

Natural Resources Defense Council, Inc.

Defendant

Environmental Protection Agency and EPA Administrator Lee M. Thomas

State

District of Columbia

Other Parties

South Carolina Department of Health and Environmental Control

Case Tags

-

Citation

812 F.2d 721; 259 U.S. App. D.C. 5 (D.C. Cir. 1987)

Year

1987-00-00T00:00:00

Court Name

United States Court of Appeals District of Columbia Circuit

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Ginsburg RB, Bork, Buckley

Opinion Text

PER CURIAM:
Natural Resources Defense Council (NRDC) and South Carolina Department of Health and Environmental Control (DHEC) challenge an Environmental Protection Agency (EPA) rule, effective December 16, 1985, establishing a recommended maximum contaminant level (RMCL) under the Safe Drinking Water Act (SDWA) for fluoride in drinking water. EPA set the level at 4 mg fluoride per liter. NRDC contends that the agency shirked its statutory responsibility by failing to adopt a lower maximum level; DHEC claims that EPA should have set no RMCL at all, or a higher one. We have reviewed the record and find that EPA reasonably interpreted the statute, responsibly evaluated the sometimes conflicting evidence in an extensive record, provided rational explanations for its determinations, and responded adequately to the arguments petitioners now repeat before the court. We therefore uphold EPA's rule as within the bounds of the agency's permissible discretion.
The SDWA, 42 U.S.C. §§ 300f to 300j-9, directs the EPA to prescribe both primary and secondary maximum levels for contaminants in public drinking water systems. Primary regulations specify federally enforceable maximum levels (MCLs) for “contaminants which, in the judgment of the Administrator, may have any adverse effect on the health of persons.” 42 U.S.C. § 300(f)(B). Secondary regulations (SMCLs), which are enforceable only in the discretion of the states, specify “maximum contaminant levels which, in the judgment of the Administrator, are requisite to protect the public welfare.” 42 U.S.C. § 300f(2).
The Act initially directed EPA to promulgate national drinking water standards in stages. Pursuant to this scheme, EPA first adopted interim primary regulations. See Environmental Defense Fund, Inc. v. Costle, 578 F.2d 337 (D.C.Cir.1978). Revised primary regulations, to replace the interim standards, were then developed in two steps: (1) recommended maximum contaminant levels (RMCLs), followed by (2) maximum contaminant levels (MCLs). Based on studies arranged with the National Academy of Sciences (NAS), and as required by the Act, EPA endeavored to set RMCLs at levels at which “no known or anticipated adverse effects on the health of persons occur and which allow[ ] an adequate margin of safety.” 42 U.S.C. § 300g-1(b)(1)(B). RMCLs, as the qualification “recommended” implies, are non-enforceable health goals; RMCLs are set without taking feasibility into account. MCLs are the federally enforceable standards. They must be set “as close to the [RMCLs] ... as is feasible” using the best means “generally available (taking cost into consideration).” 42 U.S.C. § 300g-1(b)(3). FN1 EPA proposed an MCL for fluoride, as well as an SMCL, the same day it published its final RMCL rule.
FN1. In June 1986, Congress amended the SDWA, eliminating the distinction between interim and revised primary regulations. Safe Drinking Water Act Amendments of 1986, Pub.L. No. 99-939, 100 Stat. 642 (1986).
NRDC attacks the RMCL for fluoride on three main fronts. First, NRDC contends that the RMCL is not low enough even to prevent crippling skeletal fluorosis, the adverse health risk EPA identified. NRDC tendered a series of calculations purporting to show that, at an RMCL of 4 mg/L, a large number of people will consume more than the amount of fluoride that EPA believes can cause crippling fluorosis. EPA convincingly explained, however, that NRDC's calculations are suspect. We note, for example, that NRDC used a daily drinking water consumption figure derived from a chart containing a clear caveat that the calculation NRDC attempted would produce an overestimate. See Attachment F to NRDC Brief.
NRDC claims that the RMCL will not adequately protect particularly susceptible individuals, such as those who drink larger than average quantities of water. EPA intelligibly explained the process through which it determined that the RMCL will protect even sensitive subgroups of the population with an adequate margin of safety. Final Rule, Joint Appendix (J.A.) Tab A, 50 FED.REG. 47142, 47144 (1985). Substantial evidence in the record supports that determination. Although a significant number of people in the United States have long been exposed to levels above 4 mg/L, only two cases of crippling fluorosis related to drinking water have ever been documented in this country. Id. at 47144, 47147, 47151-52. Both victims had disorders that caused them to drink excessively, and both drank large quantities of tea, a beverage notably high in fluoride content. EPA reasonably concluded that the SDWA does not “require[ ] protection by national regulation of persons who, through unusual [dietary] practices, may put themselves at risk.” Id. at 47148.
NRDC's second main attack targets EPA's conclusion that dental fluorosis does not qualify as an adverse health effect under the SDWA, but is rather a cosmetic effect that would adversely affect public welfare. This conclusion placed dental fluorosis in the domain of secondary, not primary, regulation. The interim standard did account for dental fluorosis as an adverse health effect, id. at 47142, and NRDC characterizes the changed categorization as dramatic and unexplained. EPA had set the interim standard at the maximum specified by the existing Public Health Service guideline; at that initial stage, the agency essayed no independent investigation or firm judgment on the issue. Indeed, in reviewing the interim regulation on fluoride, this court questioned whether the “cosmetically undesirable mottling of the tooth enamel that results from excessive fluoride” could “be regarded as an ‘adverse effect on health’ within the meaning of the [SDWA].” Environmental Defense Fund, 578 F.2d at 347 & n. 35.
EPA decided to define adverse health effects as those resulting in functional impairment. The agency then determined that dental fluorosis, although manifested by unattractive staining and pitting, did not appear to cause loss of function or mortal injury to the teeth. Thus finding the evidence inadequate to conclude that dental fluorosis is an adverse health effect, EPA did not consider the prevention of that condition in setting the RMCL. The appropriate classification of dental fluorosis was extensively discussed in the rulemaking, and EPA explained its decision. See Responses to Generic Issues, J.A. Tab D at 5-6; Final Rule, J.A. Tab A, 50 FED.REG. at 47143-44.
NRDC asserts that many scientific experts consider dental fluorosis an adverse effect on health. Acknowledging that this aspect of the rulemaking had been controversial, id. at 47143, EPA essentially demurred to NRDC's point. Experts can describe what dental fluorosis does to the body; whether that constitutes an adverse effect on health under the SDWA, however, is a question of statutory interpretation. The statute does not define “adverse effect on health,” and NRDC does not seriously contest the reasonableness of defining that phrase to mean some functional impairment. The pivotal question, therefore, is whether EPA reasonably concluded that dental fluorosis does not significantly impair the functioning of body or mind.
NRDC features a psychiatric panel's report concerning potential psychological effects of dental fluorosis. EPA reasonably concluded, however, that the possible problems identified by the expert panel, such as loss of self-confidence and dissatisfaction with personal appearance, were not significant enough to rank under the Act as health rather than welfare effects. Final Rule, J.A. Tab A, 50 FED.REG. at 47144.
Finally, NRDC assails as arbitrary EPA's failure to take into account numerous other health risks that may be connected with fluoride. NRDC cites studies purporting to find a link between fluoride and a host of health problems. Under the SDWA, however, the RMCL is to be set with reference to known or anticipated adverse health effects, not merely possible effects. 42 U.S.C. § 300g-1(b)(1)(B).
EPA reviewed and responded to the studies in fair detail and gave reasoned explanations for finding that they did not convincingly establish a cognizable connection between fluoride in drinking water and the various health risks posited. See Final Rule, J.A. Tab A, 50 FED.REG. at 47152; Drinking Water Criteria Document, J.A. Tab C; Summary of Comments and Responses, J.A. Tab D. Some of the studies, we note, were not conducted in living organisms, used extremely high dosages of fluoride never found naturally in drinking water, or did not follow established scientific methods. EPA, when it evaluated the studies cited by NRDC, also properly considered compelling contrary evidence.
NRDC, in essence, asks the court to substitute that organization's judgment for EPA's. We have no warrant to do so. Our review function is accomplished when we have inspected the agency's action, as we have here, to insure that the action has a rational basis, one that reasonably promotes the legislative design.
DHEC, in stark contrast to NRDC, maintains that EPA should not have established any RMCL for fluoride because the two isolated cases of crippling skeletal fluorosis observed in the United States are insufficient evidence that fluoride in drinking water has any adverse effect on health. As EPA explained, however, the statute requires the agency to take account of adverse effects on health known or anticipated; SDWA does not confine the agency's ken to effects that have occurred widely in the United States.
DHEC stresses that, in responding to NRDC's argument that crippling skeletal fluorosis is known to occur at 4 mg/L, EPA itself remarked on the limited usefulness of foreign studies of that condition. From this, DHEC concludes that the record affords inadequate support for describing crippling fluorosis as an anticipated effect. See DHEC Reply Brief at 4-6. EPA did say that the occurrence of crippling fluorosis at levels below 4 mg/L in India is not predictive of whether crippling fluorosis will occur at that level in the United States. Foreign studies remain probative, however, on the question whether fluoride in drinking water is a source from which one can anticipate incidents of crippling fluorosis. Further, numerous studies have documented crippling fluorosis from sources of fluoride other than drinking water. Response to Generic Issues, J.A. Tab D at 117-31. It was not irrational for EPA to determine that fluoride contained in drinking water could also produce this condition.
The risk of crippling fluorosis from drinking water, DHEC urges, is so slight that, if any RMCL is tolerable, the necessary margin of safety should be negligible. DHEC proposes an RMCL of 8 mg/L, which is less than the 10 mg/L concentration that EPA believes may lead to crippling fluorosis. DHEC Reply Brief at 19. EPA rationally explained that the margin of safety provided by the RMCL of 4 mg/L may be needed to protect those who drink more than average amounts since the 10 mg/L level is based on an average drinking water consumption figure of 2 L per day. Final Rule, J.A. Tab A, 50 FED.REG. at 47147-48, 47151-52. EPA, in sum, made a permissible administrative judgment, and we must “avoid[ ] all temptation to direct the agency in a choice between rational alternatives.” Environmental Defense Fund, 578 F.2d at 339.
For the reasons stated, the petitions for review are denied and the final rule at issue is affirmed.
It is so ordered.

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New Haven Water Company v. City of New Haven

Connecticut, Abuse of Municipal Authority

Plaintiff

New Haven Water Company

Defendant

City of New Haven

State

Connecticut

Other Parties

Town of Hamden

Case Tags

- Abuse of Municipal Authority

Citation

152 Conn. 563; 210 A.2d 449 (Conn. 1965)

Year

1965-00-00T00:00:00

Court Name

Supreme Court of Connecticut

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

King

Opinion Text

KING, Chief Justice.
These two cases were argued together and may be considered in one opinion. Each involves the power of a municipality to impose upon the plaintiff, by ordinance, the obligation of fluoridating the water supply furnished by the plaintiff to the inhabitants of that municipality. Judgment in favor of the plaintiff was rendered in each case, and each defendant has appealed.
The plaintiff is, by statutory definition, a public service company. General Statutes § 16-1; Dwyer v. Public Utilities Commission, 147 Conn. 229, 230, 153 A.2d 742. It is privately owned FN1 and is engaged in the business of furnishing water for public and domestic use to eleven municipalities in the New Haven area, including each defendant. The plaintiff obtains water from sources in thirteen communities. It distributes this water through an integrated system so constructed as to supply, through the system as a whole, the total requirements of all of the municipalities served. Of those served, only the two defendant municipalities have enacted ordinances purporting to require fluoridation of the water supplied to their inhabitants. The material portions of each ordinance are substantially identical. The other municipalities served by the plaintiff have not adopted ordinances regarding fluoridation. The cost to the plaintiff of converting its distribution system to provide for the fluoridation of water supplied New Haven alone, without fluoridating the water furnished to the other municipalities served, would be approximately $4,500,000, while the cost of a similar conversion to supply Hamden alone would be approximately $1,589,000. On the other hand, the cost of converting the system to fluoridate the water furnished to all the municipalities served would be only $79,600.
FN1. We are not here concerned with a water supply system owned and operated by a municipal corporation under special legislative authority.
The court also found that ‘[t]he introduction of fluoride into the public water supply...will substantially and materially reduce cavities in the teeth of children under the age of sixteen ... and will benefit adults by increasing the density of the bones of the body, thus reducing the prevalence of osteoporosis in adults.’ The ordinances, which require the introduction of fluoride into the public water supply, thus were found to tend to promote the public health. Cases involving the validity of enactments providing for the fluoridation of a public water supply are collected in an annotation in 43 A.L.R.2d 453, 459.
As a creature of the state, a municipality can exercise only such powers as are expressly granted it or such powers as are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation. Baker v. Norwalk, 152 Conn. 312, 314, 206 A.2d 428; Bredice v. Norwalk, 152 Conn. 287, 292, 206 A.2d 433; Ingham v. Brooks, 95 Conn. 317, 328, 111 A. 209; Crofut v. Danbury, 65 Conn. 294, 300, 32 A. 365. Each defendant bases its claim of authority to enact the ordinance in controversy on the Home Rule Act (General Statutes c. 99), which authorizes a municipality to ‘provide for the health of [its] inhabitants... and to do all things necessary or desirable to secure and promote the public health.'FN2 General Statutes § 7-194, subdivision (44). The defendants claim that the ordinances are valid because, as found by the court, they require, in fluoridation, action promoting the public health.
FN2. New Haven also makes a claim of authority to enact its ordinance under § 50(1) of the New Haven Charter (Rev. to Sept. 1952), which authorizes the enactment of ordinances ‘[t]o provide for the health of the city.’ Clearly, this provision adds nothing to the grant of power in the Home Rule Act, and consequently it need be given no separate consideration.
In the determination of the adequacy of the municipal legislative authority conferred by the general grant of power relied upon by the defendants, it must not be overlooked that the particular ordinances in question are directed to the regulation of a public service company which is not only engaged in supplying water to at least eleven separate municipalities but which is subject to extensive regulation by the state through the public utilities commission, the state department of health, and otherwise. FN3
FN3. See, for instance, General Statutes §§ 16-1, 16-11, 16-23 (public utilities commission); General Statutes §§ 19-1, 19-13 and Conn. Public Health Code (Oct. 1961) Regs. 103(A)(e) and (g), 103(B)(b), 112, 118, 120, General Statutes §§ 25-32-25-37 (state department of health); General Statutes §§ 25-38, 25-39, 25-41, 25-43, 25-44 (state statutory control); General Statutes § 25-45 (specific delegation to municipalities of power to enact ordinance to protest reservoirs).
The plaintiff claims that each ordinance is invalid because it is inconsistent with this overall state regulatory scheme. As early as 1895, this court observed that ‘[t]he proper regulation of railroads, in their course through different towns, is a matter which is necessarily of more than local concern.’ Cullen v. New York, N. H. & H. R. Co., 66 Conn. 211, 223, 33 A. 910, 911. ‘Neither the public nor the service corporation could tolerate as many standards and policies as there were towns, cities or boroughs through which they operated.’ Connecticut Co. v. City of New Haven, 103 Conn. 197, 211, 130 A. 169, 174. ‘[T]he same reasoning applies today with even greater emphasis to a public utility supplying a service which almost everyone in the state requires daily.’ Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 662, 103 A.2d 535, 542. In the absence, as here, of specific legislative authority to the contrary, it is the policy of this state to reserve to itself the control of public service corporations serving more than one community. Connecticut Co. v. City of New Haven, supra; Jennings v. Connecticut Light & Power Co., supra, 140 Conn. 663, 103 A.2d 535; Dwyer v. Public Utilities Commission, 147 Conn. 229, 232, 158 A.2d 742; cf. Conn. Dept. Regs, § 19-13-B81, effective February 9, 1965 (appearing in 26 Conn.L.J., No. 32, p. 24). The ordinances in question are in conflict with this policy, and the court was not in error in holding them invalid and in granting injunctive relief against their enforcement. FN4
FN4. The defendants seem to place great reliance on the case of Connecticut Theatrical Corporation v. New Britain, 147 Conn. 546, 548, 163 A.2d 548, which upheld the power of the city of New Britain to enact an ordinance requiring the attendance of a police officer during each performance at any moving picture theater within that city. The New Britain charter specifically empowered the enactment of ordinances ‘concerning the regulation of moving picture exhibitions.’ That case does not support or strengthen the defendants' position.
There is no error in either case.
In this opinion the other judges concurred.

LEVENTHAL, Circuit Judge:
This case calls on us to consider the duties of the Environmental Protection Agency (EPA) under the Safe Drinking Water Act FN1 passed on December 18, 1974.
FN1. Pub. L. 93-523, 88 Stat. 1660 (codified at 42 U.S.C. ss 300f to 300j-9 (Supp.1977) ).
I. INTRODUCTION
In this statute, Congress responded to accumulating evidence that our drinking water contains unsafe levels of a large variety of contaminants. The Act requires the Environmental Protection Agency to promulgate regulations restricting the concentration of such substances in drinking water.
The present action is brought by the Environmental Defense Fund (EDF), a non-profit organization concerned with environmental issues. EDF challenges the adequacy of interim regulations promulgated under the Act, urging that they fail to restrict levels of certain substances that may be harmful, and fail to require adequate monitoring of other substances.
The EPA responds by stressing the poverty of clearcut information concerning the harmfulness of the substances in question, and the lack of a satisfactory method for determining their levels in drinking water. These considerations, argues the Agency, make it unfeasible to formulate more extensive regulations at the present time. The Agency's position is reinforced by the fact that the challenged regulations are interim; the statutory scheme provides for the development of more definitive regulations at a later time.
The dispute poses for this court the difficult task of determining whether the agency has exceeded the bounds of its permissible discretion, in an area characterized by scientific and technological uncertainty. Where administrative judgment plays a key role, as is unquestionably the case here, this court must proceed with particular caution, avoiding all temptation to direct the agency in a choice between rational alternatives. At the same time, we must be cognizant of our duty to scrutinize with care the actions under challenge, to determine whether a rational basis for them may be discerned. Our responsibility is particularly weighty where, as here, serious issues of public health are involved on a potentially vast scale.
II. THE STATUTORY SCHEME
The Safe Drinking Water Act provides that the Administrator of the Environmental Protection Agency shall promulgate national drinking water standards in three phases. The first phase leads to the promulgation of “interim primary drinking water regulations” (interim regulations). These regulations set maximum contaminant levels (MCL) for substances that the Administrator finds may have an adverse effect on health, or, where that is not feasible, specify treatment techniques to reduce the level of the contaminant. FN2 They are intended to “protect health to the extent feasible, using technology, treatment techniques, and other means, which the Administrator determines are generally available (taking costs into consideration) on the date of enactment of this title.” FN3 Proposed interim primary drinking water regulations were to be published within 90 days after the passage of the Act. Final interim regulations were to be promulgated 180 days after passage of the Act. FN4 The interim regulations were to take effect eighteen months after the date of their promulgation. FN5
FN2. Sec. 1401(1)(B), (C), 42 U.S.C. s 300f(1)(B), (C).
FN3. Sec. 1412(a)(2), 42 U.S.C. s 300g-1(a)(2).
FN4. Final interim regulations were actually promulgated on Dec. 10, 1975. 40 F.R. 59566 (Dec. 24, 1975).
FN5. I. e., in June, 1977.
The second phase results in the promulgation of “revised national primary drinking water regulations” (revised regulations). These regulations also set MCL's or specify treatment techniques. FN6 They must be formulated to reduce contaminant levels as nearly as is feasible to levels at which no adverse effects on health occur. Feasibility is to be determined with reference to the best technology generally available, taking cost into consideration.
FN6. Sec. 1401(1)(B), (C), 42 U.S.C. s 300f(1)(B), (C).
To lay the groundwork for phase two, the Act directs the Administrator to enter into an appropriate arrangement with the National Academy of Sciences or another independent scientific organization to conduct a study to determine the existence of drinking water contaminants that may pose a health problem and, where possible, to establish safe maximum contaminant levels for these substances. A report of the results of this study is to be made to Congress within two years after passage of the Act and a summary of the report is to be published in the Federal Register. Within 90 days after publication of the report, the Administrator is required to formulate proposed revised national primary drinking water regulations, based on the findings contained in the report. Within 180 days after the date of the proposed revised regulations, the Administrator must promulgate revised regulations. These regulations are to take effect 18 months after promulgation.
The third and final phase of regulation generates “national secondary drinking water regulations” (secondary regulations). The Administrator is required to publish proposed “national secondary drinking water regulations” within 270 days after the date of the Act's passage. Within 90 days after publication of such proposed regulations, he must promulgate secondary regulations. The Act does not specify when these regulations are to take effect.
Regulations promulgated in all three phases may be amended. FN7
FN7. Sec. 1412(b)(4), (c), 42 U.S.C. s 300g-1(b)(4), (c).
III. CHALLENGES TO THE INTERIM REGULATIONS
Pursuant to statute, on March 14, 1975, the Administrator published proposed interim regulations for public comment. In the course of the proceedings, EDF challenged the adequacy of the proposed regulations. Subsequently, on December 10, 1975, the Administrator promulgated the interim regulations. In this appeal, EDF challenges four specific aspects of these regulations: 1) the failure to fully control organic contaminants in drinking water; 2) the adequacy of the MCL for fluoride; 3) the failure to regulate sodium and sulfates; 4) the adequacy of the monitoring required for cadmium and lead. It will be helpful to detail the nature of the dispute on each point.
A. Regulation of Organics
The interim regulations provide MCL's for only six organic contaminants FN8 out of the large number of such substances known to be present in drinking water. They do not specify treatment techniques for reducing organics. EDF argues that the legislative intent was that comprehensive regulation of organics should commence with the interim regulations. It points to accumulating evidence not only of the presence of large numbers of organic substances in drinking water, but of correlations between such contaminants and human health consequences, including cancer. It urges the need to set a limit on total organic content of drinking water, by adoption of some chemical measure which would serve as a surrogate for total organic content.
FN8. 40 C.F.R. s 141.12. The contaminants covered are Endrin, Lindane, Methoxychlor, Toxaphene, 2, 4-D, and 2, 4, 5-TP.
The EPA responds that the interim regulations were meant to be less comprehensive than the revised regulations and, more specifically, that Congress did not anticipate a comprehensive regulation of organics under the interim regulations. The EPA further stresses that the effects of long-term ingestion of organic contaminants in drinking water are not yet clear, making it difficult to set MCL's for these substances. In addition, argues the EPA, information on the efficacy and expense of available treatment techniques is incomplete. Thus, its decision to limit regulation of organics to six substances is presented as a legitimate exercise of agency discretion.
B. Regulation of Inorganic Substances
1. Fluoride
The MCL for fluoride specified by the interim regulations is based on the principle that drinking water may usefully contain sufficient fluoride to provide optimal protection against dental caries, but that the amount by which such levels are exceeded should be limited, so as to avoid undue side-effects primarily mottling of the teeth (fluorosis), a condition with only esthetic significance. The MCL established by the Administrator permits fluoride levels up to two times the optimal protective level. EDF argues that the permitted level is too high: the severity of fluorosis is proportional to fluoride concentrations; thus, permitting levels to greatly exceed the optimal therapeutic level violates the duty of the Administrator to formulate interim regulations that will protect health “to the extent feasible.”
In response, the EPA cites authority to the effect that the levels in question do not pose a health hazard. FN9 The EPA views the matter as essentially one of line-drawing, in which it properly exercised reasonable discretion.
FN9. EPA relies upon consultations with the Department of Health, Education and Welfare, and with the National Drinking Water Advisory Council. Brief for the Respondent at 35-38.
2. Sodium and Sulfates
Neither of these substances is controlled under the interim regulations. FN10 The EDF argues that the health effects of these substances are well established FN11 and that regulation was mandated by the Act.
FN10. In the Preamble to the interim regulations, as published in the Federal Register, the Agency does recommend that the states monitor sodium and sulfates, and notify consumers and physicians of these levels where appropriate. 40 F.R. 59567 (Dec. 24, 1976).
FN11. Sodium intake is of concern to individuals on sodium-restrictive diets primarily those suffering from hypertension or congestive heart failure. Sulfates have a laxative effect on newcomers to a community whose water contains high sulfate levels.
The EPA believes that the setting of MCL's for these substances would have been inappropriate, since individual response to their presence in drinking water varies over a broad continuum. While monitoring of these levels and notification of those concerned might be desirable, FN12EPA concluded that it lacked authority under the Act to require such programs.
FN12. See footnote 11 supra.
3. Cadmium and Lead
The interim regulations set MCL's for both of these substances. The parties do not dispute the fact that their presence in drinking water represents a potential danger to health. Rather, EDF focuses on the manner in which the levels of these contaminants in drinking water are to be monitored under the interim regulations. While levels are monitored at the tap FN13 (thus insuring that contributions from the distribution and plumbing systems will be reflected), samples are required to be tested only annually, FN14 and the size and distribution of sampling is not specified. EDF objects that more frequent sampling, of a specified size and distribution, is needed in order adequately to control the contributions of cadmium and lead from distribution sources, which vary widely in the extent to which they are responsible for these substances in drinking water.
FN13. 40 C.F.R. s 141.2(c).
FN14. 40 C.F.R. s 141.23.
The EPA defends its monitoring requirements on the ground that, in its judgment, more extensive monitoring cannot be justified in light of the added expense. The agency points out that injurious effects from these substances result from long-term exposure, thus permitting correction of deviation from safe levels before harm to the public has resulted. The agency thus views its monitoring requirements as an appropriate exercise of its discretion.
IV. THE INTENT OF THE LEGISLATURE
This case involves conflicting contentions as to the nature of our present state of knowledge in the pertinent areas. We begin, however, by noting that the parties differ in their apprehension of legislative intent, and by making our own effort to discern the will of Congress.
A. The Statutory Language
The phased structure of the statutory scheme suggests that formulation of the regulations is intended to be progressive in nature, adapting to increasing knowledge and experience in the area. Yet the statutory language does not dispose of the general issue presented by petitioners: How comprehensive did Congress intend the interim regulations to be?
The opening section of the Act defines the term “primary drinking water regulation” (which includes both interim and revised regulations) as a regulation “which specifies contaminants which . . . may have any adverse effect on the health of persons . . . .” FN15 Petitioner EDF, stressing the word “may,” FN16 urges that this language reflects a legislative intent that interim, as well as revised, regulations should cover all substances in drinking water that may adversely affect health. While there is room for argument, it is our view that the language is more naturally read as a definition which it purports to be than as a legislative command.
FN15. Section 1401(1)(B), 42 U.S.C. s 300f(1)(B).
FN16. Brief for Petitioner at 8.
In another provision, s 1412(a)(2) of the Act states that interim primary regulations “shall protect health to the extent feasible, using technology, treatment techniques, and other means which the Administrator determines are generally available (taking costs into consideration) on the date of enactment of this Act (December 16, 1974).” FN17 Read by itself, this language can be taken as extremely comprehensive. We think, however, that the Congressional intent to avoid a requirement of broadest comprehensiveness is discernible when the above language is read alongside the statutory language concerning the (greater) comprehensiveness of revised regulations. Section 1412(b) of the Act requires the revised primary regulations to
FN17. 42 U.S.C. s 300g-1(a)(2).
specify a maximum contaminant level or require the use of treatment techniques for each contaminant for which a recommended maximum contaminant level is established or which is listed in a rule under paragraph (1)(B). The maximum contaminant level specified in a revised national primary drinking water regulation for a contaminant shall be as close to the recommended maximum contaminant level established under paragraph (1)(B) for such contaminant as is feasible. A required treatment technique for a contaminant for which a recommended maximum contaminant level has been established under paragraph (1) (B) shall reduce such contaminant to a level which is as close to the recommended contaminant level as is feasible. A required treatment technique for a contaminant which it listed under paragraph (1)(B) shall require treatment necessary in the Administrator's judgment to prevent known or anticipated adverse effects on the health of persons to the extent feasible. For purposes of this paragraph, the term “feasible” means feasible with the use of the best technology, treatment techniques, and other means, which the Administrator finds are generally available (taking cost into consideration). FN18
FN18. Section 1412(b)(3), 42 U.S.C. s 300g-1(b)(3).
This provision in paragraph (3) of s 1412(b) must be read in conjunction with paragraph (1)(B) of that section, which requires the Administrator to establish recommended maximum contaminant levels for, or at least list, each contaminant which, in his judgment, FN19 may have any adverse effect on health. Hence the passage from paragraph (3) quoted above requires in turn that he specify a MCL, or a mandatory treatment technique, for each contaminant which may pose a threat to health. The statutory language is thus unambiguous (though perhaps labyrinthine) in its requirement that the revised regulations be fully comprehensive in scope. The language of section 1412(a) which seems universal when taken by itself is perceived on study to be silent as to scope of the interim regulations, and in contrast with the wording for revised regulations. There is more room for administrative discretion than first appears.
FN19. Based on the report on the study conducted by the National Academy of Sciences. See 188 U.S.App.D.C. -- - --, 578 F.2d 340, supra.
There is also a tightening between section 1412(a) and section 1412(b) as to substantive content. Both sections use the term “feasible,” and there is flexibility to consider costs. But section 1412(a) provides that the interim regulations shall protect health to the extent feasible using technology generally available on December 16, 1974, while section 1412(b) provides that the revised regulations shall use the best technology generally available.
The text of the statute indicates that the regulations are to become progressively more comprehensive and demanding. The words used give some signals of intent. However, it is the history of the legislation that is more enlightening and reenforcing of what we glean initially from the words alone.
B. The Legislative History
Prior to the passage of the Safe Drinking Water Act, the only enforceable federal standards for drinking water were directed at communicable waterborne diseases. These were promulgated under the Public Health Service Act. FN20 Under that law, the Public Health Service published, in 1962, recommended i. e., nonenforceable guidelines for drinking water contaminants unrelated to communicable disease. FN21
FN20. 42 U.S.C. s 264 (1974).
FN21. Public Health Service Drinking Water Standards, Department of Health, Education and Welfare, 1962.
Congress passed the Safe Drinking Water Act in response to increasing indications of a serious threat to health from contaminants in our drinking water not related to communicable disease. The legislative history contains abundant evidence that Congress intended the rapid implementation of broad mandatory controls over impurities. The Report of the House Committee on Interstate and Foreign Commerce FN22 sets a general tone of urgency in stating that
FN22. H.R.Rep. No. 93-1185, 92d Cong., 2d Sess. (1974); U.S.Code Cong. & Admin.News 1974, p. 6454.
the lack of comprehensive cost, health effects, technological assessment, and monitoring data cannot justify any further delay in Congressional and administrative action. While it would be desirable to have complete health effects research, effective treatment technology, and accurate, inexpensive monitoring systems in operation prior to commencing a system of regulation, this is simply not possible. It is the . . . intent (of the Committee) that EPA, the States, and the public water systems begin now to maximize protection of the public health insofar as possible, and to continue and expand these efforts as new more accurate data, technology, and monitoring equipment become available. FN23
FN23. Id. at 8; U.S.Code Cong. & Admin.News 1974, p. 6461.
Specifically, the House Report indicates that controls were not to be delayed pending the development of more refined data on health effects and more efficient detection and treatment technology.
Primary regulations (i. e., both interim and revised) must specify contaminants which in the judgment of the Administrator may have an adverse effect on the health of persons when found in drinking water. The words used by the Committee were carefully chosen. Because of the essentially preventive purpose of the legislation, the vast number of contaminants which may need to be regulated, and the limited amount of knowledge presently available on the health effects of various contaminants in drinking water, the Committee did not intend to require conclusive proof that any contaminant will cause adverse health effects as a condition for regulation of a suspect contaminant. Rather, all that is required is that the Administrator make a reasoned and plausible judgment that a contaminant may have such an effect. FN24
FN24. Id. at 10; U.S.Code Cong. & Admin.News 1974, p. 6463 (emphasis in original).
A further suggestion of the legislature's intent with regard to organic contaminants is seen in its expectation that the interim regulations “would be based largely on a review and updating of the United States Public Health Service drinking water standards” as conducted by the EPA Advisory Committee on the Revision and Application of the Drinking Water Standards in 1973. House Report at 17; U.S.Code Cong. & Admin.News 1974, p. 6470. Both the 1962 Public Health Service Drinking Water Standards and the 1973 recommendations of the EPA Advisory Committee on the Revision and Application of the Drinking Water
STANDARDS INCLUDE A SURROGATE FOR TOTAL ORGANICS. V. EVALUATION OF THE CHALLENGED REGULATIONS IN LIGHT OF THE LEGISLATIVE INTENT
We are persuaded that the legislature intended the EPA to undertake rapid and comprehensive measures in coping with the problem of unsafe drinking water. It seems particularly clear from the legislative history that Congress contemplated prompt regulation, whenever feasible, of every contaminant identified as possibly injurious to health.
While the urgency of the legislature's plan is undeniable, a second aspect of its plan, of perhaps equal importance, is apparent. Regulation in this area, to proceed most efficiently, must remain attuned to our rapidly expanding knowledge and technology. The phased structure of the statutory scheme wisely reflects such an awareness. Heavy investment in measures of uncertain value may prove costly not only in financial terms but also, and more importantly, on a human scale. It would be simplistic to read the legislative will as mandating an undifferentiated and full-scale commitment of resources to programs based entirely on the present state of our knowledge. We do not understand petitioners to adopt such a position.
The notion of attuning national efforts to the progressive development of our capabilities in this area has reverberations, we think, for the proper role of the judiciary in a dispute such as the one before us. In our response to the challenge directed against administrative action, we must be wary lest our interim adjudications hinder pursuit of the legislative goals. In circumstances such as confront us here, judicial efforts may be more profitably expended in assuring that future agency action will effectively promote the goals of the legislature than in fashioning remedies to “correct” earlier agency missteps.
With these thoughts in mind, we proceed to examine the challenged regulations.
A. Regulation of Organics
As we have indicated above, we believe the legislature contemplated that the interim regulations would, where feasible, control every contaminant that may prove injurious to health. The failure of the challenged regulations to do so thus becomes suspect. In light of the clear language of the legislative history, the incomplete state of our knowledge regarding the health effects of certain contaminants and the imperfect nature of the available measurement and treatment techniques cannot serve as justification for delay in controlling contaminants that may be harmful.
There is ample evidence establishing the fact that our drinking water is contaminated with a large variety of organic substances, of demonstrated carcinogenicity in animals.FN25 Most of these substances are not controlled under the interim regulations. Methods of monitoring the total organic content of water are available FN26 and, while not perfect, they make possible the exercise of significant control over the drinking water content of a wide range of organic substances. The argument of the EPA that the use of such imperfect measures may lead to a false sense of security FN27 cannot be accepted in light of the clear language in the House Report requiring prompt action despite defects in our monitoring capabilities. Finally, there is material in the record before us to indicate that feasible methods for lowering the level of organic contaminants in drinking water may be available FN28 at a reasonable cost. FN29 This would of course be a matter for EPA determination in the first instance, but the EPA has not stated that its course has been based on a contrary assumption.
FN25. An example of unusual current concern is chloroform. The National Organics Reconnaissance Survey, initiated by the EPA in 1974 to determine the extent to which organics were present in the nation's drinking water, revealed, inter alia, that chloroform was present in the drinking water of each of the 80 cities studied. Chloroform is carcinogenic in laboratory animals. Report on the Carginogenesis Bioassay of Chloroform, Division of Cancer Cause and Prevention, National Cancer Institute, Mar. 1, 1976. Chloroform is not controlled under the interim regulations.
FN26. The carbon chloroform extract (CCE) test procedure, which was the recommended standard for organic chemicals under the 1962 Public Health Service Drinking Water Standards, measures the total level of organic substances in drinking water, without identifying the individual component substances. While it may not detect all organics, it has the practical advantage of obviating the need to measure each substance individually, while providing a gross measure of the total organic content of water. See Drinking Water Standards: Report of the EPA Advisory Committee on the Revision and Application of the Drinking Water Standards (1973).
FN27. Brief for Respondent at 26.
FN28. See Evaluation of Activated Carbon as a Drinking Water Treatment Unit Process, EPA, Mar. 3, 1975.
FN29. See Draft Interim Treatment Guide for the Control of Chloroform and other Trihalomethanes, EPA Water Supply Research Division, April, 1976 at 28.
While there is therefore serious question whether the EPA's failure to control total organics in the interim regulations has been responsive to the statute's provisions, we defer final resolution of this question. Considerations already identified suggest the wisdom of this course of action. During the pendency of this litigation, information bearing upon the problem of organic contaminants in drinking water has continued to accumulate. The National Academy of Sciences has submitted to Congress a report of its study of contaminants in drinking water, FN30 undertaken pursuant to section 1412(e) of the Act. FN31 The EPA has solicited views and data concerning the control of organic contaminants in drinking water, preparatory to considering amendment of the interim regulations. FN32 These are but two examples of potential new sources of data that may aid the agency in reformulating its present approach to contaminants so as to keep pace with scientific and technological developments.
FN30. Drinking Water and Health, Report to Congress of Recommendations of the National Academy of Sciences (June 20, 1977), summarized in 42 F.R. 35764 (July 11, 1977). The report lists 20 organic substances found in drinking water that are known to have, or are suspected of having, carcinogenic properties in man or animals. 42 F.R. at 35776, Table 1. Of these, only two (Lindane and Endrin) are controlled under the interim regulations. The report stresses the applicability of findings in animal studies to man. Id. at 35776.
FN31. 42 U.S.C. s 300g-1(e).
FN32. Advance Notice of Proposed Rulemaking, 41 F.R. 28991 (July 14, 1976).
Congress has authorized the appellate courts to adopt such procedure, including orders of remand and requirement of further proceedings, “as may be just under the circumstances.” FN33 In cases like this, the court of appellate jurisdiction has been given authority to review actions of agencies in order to assure adherence to legislative mandate and furtherance of the legislative will. In our view, it would not be consistent with sound procedure, and hence would not be just to all concerned in the circumstances, to insist on agency application of resources and effort to reconsideration or revision of the interim regulations, as if that were the only process before the agency. The statute itself delineates an ongoing process, and we are informed of the potential of agency revision of its interim regulations. The court cannot wear blinders in a litigation involving an ongoing administrative process, and its rulings and relief must take account of the world as it exists as of the time of the decree.
FN33. Although 28 U.S.C. s 2106 in terms applies to review of court orders, it has been understood to identify a general principle of appellate review that is applicable to review of agency orders and regulations, particularly when applied so as to permit enlightenment as to agency reasoning without undue intrusiveness. See Greater Boston Television Corp. v. FCC, 149 U.S.App.D.C. 322, 331, 463 F.2d 268, 277 (1971); International Harvester v. Ruckelshaus, 155 U.S.App.D.C. 411, 445, 478 F.2d 615, 649 (1973); Natural Resources Defense Council v. Train, 166 U.S.App.D.C. 312, 334 & n.112, 510 F.2d 692, 714 & n.112 (1974).
In furtherance of our function and responsibility, we remand the record with a request to EPA to report to this court within 60 days regarding significant changes that have occurred, since the promulgation of the interim regulations, in its assessment of the problem of controlling organic contaminants in drinking water, and to advise the court of its determinations as of the time of the report as to whether it plans to propose amended interim regulations in light of newly acquired data.
B. Regulation of Inorganic Substances
We find the dispute concerning the EPA's handling of inorganic contaminants susceptible of more definitive resolution at this time. This issue is not characterized by the extremely rapid scientific and technological development that give a special dimension to the problem of organics. Current knowledge of injurious effects is more well-developed and stable. The costs and efficacy of monitoring and treatment procedures are similarly more well established.
The task of the agency here is largely one of line drawing. Agency expertise and judgment must be applied in determining the optimal balance between promotion of the public welfare and avoidance of unnecessary expense. We will not interfere so long as the agency strikes a balance that reasonable promotes the legislative purpose.
Applying this standard we find that the challenged actions concerning the regulation of inorganic substances fall within the limits of discretion delegated to the agency under the Act, and reasonably promote the legislative intent. Our views may be summarized briefly.
1. Fluoride : The interim regulations permit fluoride levels to reach twice the optimal level for protection against dental caries. The EDF accepts that these levels may exceed the optimal therapeutic level, but argues that the MCL should be set at 1.5 times the optimal therapeutic level. FN34 The cosmetically undesirable mottling of the tooth enamel that results from excessive fluoride occurs in a severity proportional to the concentration of fluoride in the drinking water. FN35 Nevertheless, because of the expense of removing fluoride from drinking water in areas where it occurs naturally in high concentration, FN36 some determination must be made of the level beyond which it is not feasible to require a further reduction of fluoride. The parties both recognize that there has been considerable controversy as to what this level should be. FN37 No evidence has been introduced that demonstrates that the level chosen by the EPA for the interim regulations fails to protect the public health to the extent feasible. We must conclude that the balance struck by the agency is well within its discretion under the Act.
FN34. EDF does not propose in its brief a specific MCL for fluoride, but in commenting on the proposed interim regulations it argued in favor of the 1.5 figure. Comments by the Environmental Defense Fund on the Environmental Protection Agency's Proposed Interim Primary Drinking Water Standards at 12-13 (May 1975).
FN35. There is serious question as to whether mottling can be regarded as an “adverse effect on health” within the meaning of the Act. See, e. g., HEW letter of June 4, 1973, to EPA at 2. “We believe that in the context of discussing limits to avoid concentrations of substances that may be hazardous to health, dental fluorosis should not be termed harmful. The more severe dental fluorosis caused by highly excessive concentrations is described in the literature as unesthetic, cosmetically objectionable, or disfiguring, but is not described as hazardous to health.” (The letter is reproduced in Comments by the Environmental Defense Fund on the Environmental Protection Agency's Proposed Interim Primary Drinking Water Standards (hereinafter cited as EDF Comments), App.Tab E, Att. 5).
FN36. Where fluoride is added to drinking water to achieve therapeutic levels, its concentration is, of course, more easily controlled.
FN37. Brief for the Respondent at 32; EDF Comments at 12, App.Tab E. The 1962 Public Health Service Drinking Water Standards recommended limiting fluoride to two times the optimal therapeutic level. In 1967, the Preventive Practices Branch of the Division of Dental Health of the Public Health Service recommended to the EPA that the limit be reduced to 1.5 times the optimal therapeutic level. Letter of Aug. 22, 1967, from the Acting Director, Division of Dental Health (reproduced in EDF Comments, App.Tab E, Att. 1). In March 1975, HEW determined that the studies upon which the 1967 recommendation was based were inadequate, and recommended to the EPA a level of two times the optimal therapeutic level. Letter of Mar. 7, 1975, from the Director of the Office of Environmental Affairs of HEW (reproduced in EDF Comments, App.Tab J).
2. Sodium and sulfates : The EPA did not promulgate interim regulations covering sodium and sulfates. The record before us does not require, as a matter of law, that the agency find that these substances, in the concentrations found in drinking water, have a significant impact on the health of most individuals. As has already been noted, the response of those who are affected varies considerably from one individual to the next. The decision not to impose MCL's for sodium and sulfates comports with these considerations, and is consonant with the views of the EPA Advisory Committee on the Revision and Application of the Drinking Water Standards, and of the National Drinking Water Advisory Council. FN38
FN38. The EPA Advisory Committee recommended notification to physicians of sodium levels, but not the establishment of an MCL. 1973 EPA Advisory Committee Report at 26, App.Tab H. Concerning sulfates, the EPA Advisory Committee did recommend that a maximum level be established. Id. at 27 (referring to bad taste, and the “discomfort” caused by the laxative effect). The National Drinking Water Advisory Council recommended monitoring of sodium and sulfates, and public notification, but no MCL's. Letter of Aug. 14, 1975 from C. C. Johnson to Russell Train, App.Tab I.
The EDF does not object to the EPA's failure to set MCL's for sodium and sulfates, but only to its failure to require monitoring of these substances and notice to customers when certain levels are exceeded. FN39 EDF finds authority for requiring such monitoring and notification in sections 1412(a)(2), FN40 1445(a), FN41 and 1450(a)(1) FN42 of the Act, the provisions of which are noted in the margin.
FN39. “If public water utilities were required to monitor and notify users that excessive levels of sodium or sulfates were present in drinking water, the public notification requirements of the Act would be satisfied and that segment of the population which all parties agree are at risk could be protected while data is accumulated to support a maximum contaminant level adequate to protect the general population.” Brief for petitioner at 63.
FN40. 42 U.S.C. s 300g-1(a)(2), which provides that the interim regulations “shall protect health to the extent feasible, using technology, treatment techniques, and other means . . . generally available . . . on the date of enactment of this title.”
FN41. 42 U.S.C. s 300j-4(a), which provides that water suppliers “shall . . . conduct such monitoring, and provide such information as the Administrator may reasonably require . . . to assist him in establishing regulations under this title.”
FN42. 42 U.S.C. s 300j-9(a)(1), which authorizes the Administrator “to prescribe such regulations as are necessary or appropriate to carry out his functions under this title.”
Given the deference that the Supreme Court has proclaimed is due on the part of a court to the agency charged with putting a new statute in motion, FN43 we are in no position to say that the EPA has violated the statute by its failure to establish monitoring and notification requirements in the interim regulations. Section 1445(a) FN44 authorizes EPA to require water suppliers to monitor supplies for the purpose of aiding the Administrator in establishing regulations. It is for the EPA to consider, at least in the first instance, whether such monitoring may be established for the purpose of advice to the public, and whether in any event monitoring can be required in the absence of regulations specifying MCL's or treatment techniques, and whether any monitoring reports made to EPA must or should be available to the public, under the Freedom of Information Act or otherwise. An agency such as EPA is confronted with a host of complex and difficult questions all at one time; an attempt to tackle them holus-bolus may be unfeasible and counter-productive. Only where a statutory direction is clear is a court warranted in issuing a mandate directing it to take particular actions.
FN43. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965), Power Reactor Development Co. v. IUERMW, 367 U.S. 396, 408, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961).
FN44. 42 U.S.C. s 300j-4.
Section 1450(a)(1) FN45 constitutes a general authorization for the Administrator to promulgate regulations necessary to his functions under the Act. Such language invests the agency with a latitude that is considerable FN46 but not untrammeled. The matter of sodium and sulfates has not been swept aside. The study carried out by the National Academy of Sciences pursuant to section 1412(e) of the Act FN47 has addressed the matter, and the report of its findings FN48 may aid the agency in reevaluating its approach to these substances. The relief prayed by petitioners will not be granted.
FN45. 42 U.S.C. s 300j-9.
FN46. Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973); Niagara Mohawk Power Corp. v. FPC, 126 U.S.App.D.C. 376, 381-82, 379 F.2d 153, 158-59 (1967).
FN47. See note 31 supra.
FN48. Summarized in 42 F.R. at 35772, 35774.
3. Lead and Cadmium: The interim regulations set MCL's for both of these substances. EDF challenges the standards set by the regulations for monitoring the levels of these substances. Monitoring is required once a year for community water systems using surface water, and once every three years for systems using ground water. There is no requirement as to the number of, and locations at which, samples are to be taken. EDF appears to press for more frequent sampling, and for express requirements concerning the number of samples and times and locations at which samples are to be taken, so as to assure detection of harmful levels that may be present in only part of a particular system, or at only certain times.
As to frequency of sampling, the EPA stresses that the harmful effects of lead and cadmium in drinking water generally result from chronic exposure to the contaminants, FN49 a point with which the EDF appears to agree. FN50 EDF does not call our attention to any evidence that would indicate that the challenged sampling intervals are not sufficiently frequent to detect changes in contaminant levels before harm results. On this record, we cannot overturn the frequency established by the EPA as an abuse of discretion.
FN49. Brief for the Respondent at 49-50.
FN50. Brief for Petitioner at 65.
We turn to the issue of the samples to be taken within a given water supply system, their number, frequency and locations. Corrosion of supply pipes and plumbing fixtures concededly constitutes a significant source of lead and cadmium in drinking water. FN51Consequently, levels of these substances may vary, even within the same water supply system, depending upon variations in the corrosiveness of the water at different times, in the periods of time during which water remains in the pipes, and in the age and composition of the pipes in different parts of the system. It is possible that an annual sampling of water at a single location in a water supply system may fail to detect such variations even for long periods of time.
FN51. Brief for Petitioner at 65; Brief for the Respondent at 53.
Section 1401(1)(D) of the Act FN52 states that primary drinking water regulations (i. e., interim and revised regulations), must contain “criteria and procedures to assure (compliance) with . . . maximum contaminant levels; including quality controls and testing procedures to insure compliance with such levels and to insure proper operation and maintenance of the system . . . .” It is plausible to put it that Congress contemplated monitoring that will detect variations within a system.
FN52. 42 U.S.C. s 300f(1)(D).
However, considerations of feasibility must be weighed in determining the extent to which intra-system variations are unacceptable under the Act. The House Report explains that “(m)onitoring should insure to the extent feasible the detection of a violation before such violation causes or contributes to any adverse health effect.” FN53 While it can be argued that all water supply systems should be required to sample widely within the system, at specified locations and frequencies, such an approach might unnecessarily burden those systems for which intra-system variation is not a problem. The House Report suggests that monitoring requirements were intended to be more finely tuned:
FN53. House Report at 15; U.S.Code Cong. & Admin.News 1974 p. 6468.
More frequent monitoring should be required by regulation for classes of systems facing local conditions which justify such increased monitoring. In prescribing regulations requiring more frequent monitoring or sampling than the minimum, the Administrator is expected to take into account, among other facts, the nature and type of the water source, historical data characterizing the water quality, anticipated variations in water quality, vulnerability of the source to accidental or deliberate contamination; the population at risk, the type of treatment provided, and the level of the contaminant which is generally found as it relates to the established limit. FN54
FN54. Id ; U.S.Code Cong. & Admin.News 1974, p. 6468.
While this passage from the House Report speaks only of frequency of sampling, its approach seems equally applicable to other aspects of monitoring.
The degree to which monitoring requirements can be tailored to detect local variations in contaminant levels depends upon the access of the EPA to information concerning such variations. The EPA maintains that it did not have detailed information of this sort available at the time of promulgation of the interim regulations. FN55 In an effort to obtain such data, it has encouraged the states to conduct sanitary surveys of water systems which would help to identify local drinking water problems. FN56
FN55. Brief for the Respondent at 52.
FN56. 40 C.F.R. s 141.2(f) (1976).
An agency has discretion in selecting the techniques appropriate for grappling with a problem and carrying out its functions. FN57 We cannot at this point say that EPA's approach to the formulation of monitoring regulations is without a rational basis. As data accumulate on local variations in lead and cadmium levels, the agency will be in a position to formulate a more refined approach to monitoring either by amending the interim regulations or by designing the revised and secondary regulations to reflect such local conditions. Should the agency fail to do so, we will have another case before us.
FN57. See Mourning v. Family Publications Services, Inc., 411 U.S. 356, 371-72, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973); Philadelphia Television Broadcasting Co. v. F.C.C., 123 U.S.App.D.C. 298, 300, 359 F.2d 282, 284 (1966).
Subsequent to the preparation of the foregoing, the EPA has initiated further regulation of organics in drinking water. Regulations proposed by the Agency on January 25, 1978, would limit the presence of trihalomethanes, including chloroform, to under 100 parts per billion in the drinking water of communities with a population of more than 75,000; and would require, in these communities, the application of a special purification technique filtration by granular activated carbon to the treatment plants of systems whose water sources are polluted. The presence of chloroform in drinking water has been of particular concern because of its demonstrated carcinogenicity in laboratory animals and widespread presence in municipal water systems. See note 25 supra.
Insofar as the petition for review presents challenges as to inorganic contaminants, it is denied. As to the challenge to the regulation of organic contaminants, we remand the record for a report by the EPA, as set forth in this opinion.
Affirmed.
MacKINNON, Circuit Judge, concurring in part and dissenting in part: The majority opinion concludes with respect to organics :
In furtherance of our function and responsibility, we remand the record with a request to EPA to report to this court within 60 days regarding significant changes that have occurred, since the promulgation of the interim regulations, in its assessment of the problem of controlling organic contaminants in drinking water, and to advise the court of its determinations as of the time of the report as to whether it plans to propose amended interim regulations in light of newly acquired data.
188 U.S.App.D.C. at --, 578 F.2d at 346. I concur in this part of the opinion. However, I dissent from the affirmance of the Agency's action with respect to lead and cadmium. The Agency defends its regulation by statistics that are based on source water, not on statistics gathered at the point of final distribution. It also relies on testimony that in my view is not sufficiently extensive, particularly in view of the fact that lead and cadmium pollution is admittedly caused by spotty factors, i. e., somewhat by the type of conduits used in various locations and the corrosiveness of the water. The contentions of the Fund, in this respect, seem to me to be logical; and since they are not answered by the Agency, I would remand those portions of the regulations for more extensive testing and reconsideration in the light thereof.
With respect to the Agency's regulations on inorganic substances, I would uphold them, in the main, for the reasons outlined in the majority opinion, but I would not confine the study of fluoride to its dental effects when it is also suspect of causing some changes in bone density.

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Rogowski v. City of Detroit

Michigan, Unlicensed Practice of Medicine/Compulsory Medication, State police power

Plaintiff

Rogowski

Defendant

City of Detroit

State

Michigan

Other Parties

-

Case Tags

- Unlicensed Practice of Medicine/Compulsory Medication

- State police power

Citation

374 Mich. 408; 132 N.W.2d 16 (Mich. 1965)

Year

1965-00-00T00:00:00

Court Name

Supreme Court of Michigan

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Dethmers JK

Opinion Text

DETHMERS, Justice.
Plaintiffs are residents of Detroit and users of water supplied by it. They brought this chancery action to enjoin defendant city, its common council, board of water commissioners, and board of health from enforcing a water fluoridation ordinance and to have it declared illegal and void. An order entered declaring this to be a class action, on behalf of all users of Detroit's public water supply who object to its fluoridation. The State Dental Assocation and Detroit Dental Society were permitted to intervene as parties defendant. Defendants moved for summary judgment in their favor. Their motion was granted, the court holding the ordinance to be valid. Plaintiffs appeal.
The ordinance, as adopted by defendant city's common council, stated that it was adopted in furtherance of the city's policy, pursuant to its police power, to promote public health. It directed the defendant city board of water commissioners, in co-operation with the defendant city board of health, to institute fluoridation of the city's water supply.
Plaintiffs' bill of complaint challenges the validity of the ordinance on the following grounds: (1) that the counsel is given no authority to enact it either by State statute or the city charter and that it is violative of the latter; (2) that it violates a statute forbidding wholesale treatment of children by health officers, other than to control epidemics of infectious or contagious diseases, without written consent of their parents; (3) that its adoption does not come within the reasonable exercise of the city's police power and thus is unconstitutional because (a) no preponderance of evidence can be produced to prove that fluoridation of water actually reduces tooth decay, as claimed by defendants, (b) fluoridation harms the teeth of a substantial number of children, (c) fluoridation will not benefit adults, but large numbers of them may be physically harmed thereby; (4) that the ordinance purports to benefit public health but the improvement would be very slight, if any, it has no real or emergency relation to public health, and it invades the private rights of persons to choose for themselves what medications they will take; (5) that it is an attempt to subject people to scientific and medical experimentation without their consent; (6) that it is wasteful and uneconomic; (7) that the purported object of the ordinance could be attained by other means not destructive of private rights.
Defendants filed answer denying the plaintiffs' allegations, above noted, as being without legal or factual basis or termed them unenlightened opinions and conclusions. They alleged in their answer that the ordinance was adopted to promote public health and that as such it was a lawful exercise of the police power; that fluoridation reduces dental caries in children, a common and widespread disease; that the overwhelming weight of scientific, medical and dental opinion is that fluoridation of the public water supply reduces dental caries in children and benefits public health; and that this was the basis of the adoption of the ordinance, after the council had conducted hearings and heard evidence concerning the merits the demerits of fluoridation. The allegations of the complaint and of the answer conflict as to such merits and demerits.
Defendants moved for summary judgment on the ground that plaintiffs' complaint raised no genuine issue of any material fact to be litigated, but presented only expressions of opinions and questions of law for court determination. In support of the motion, defendants filed statements of public officials, endorsements by State councils and departments of health, and affidavits of scientific and medical authorities setting forth and acknowledging that fluoridation of public water supplies is beneficial to public health, that several thousand cities in the United States are fluoridating public water supplies and that millions of Americans are drinking such water and receiving the health benefits therefrom. Included among them were the following: Statements by John F. Kennedy, president of the United States; statement by Anthony J. Celebrezze, secretary, department of health, education and welfare; statement by Arthur S. Flemming, secretary, department of health, education and welfare; statement by Dr. Luther L. Terry, surgeon general, public health service; statement by Robert F. Kennedy, attorney general of the United States; affidavit of Albert E. Heustis, M.D., Michigan State health commissioner; minutes of 12/19/51 meeting of State council of health; minutes of 10/15/52 meeting of State council of health; minutes of 10/7/53 meeting of State council of health; minutes of 10/27/59 meeting of State council of health; statement of policy re fluoridation of public water supplies, Michigan department of health, January, 1949; statement of policy re fluoridation of public water supplies, Michigan department of health, July, 1950; statement of policy re fluoridation of public water supplies, Michigan department of health, September, 1952; statement of policy re fluoridation of public water supplies, Michigan department of health, July, 1955; affidavit of Howard H. Mehaffey, D.D.S., in support of motion for summary judgment; affidavit of William Travis, D.D.S., in support of motion for summary judgment. In one of the said affidavits by a dentist, listed as public and private organizations that have endorsed fluoridation of public water supplies, are the following: public health service of the United States department of health, education and welfare, Michigan department of health, American Medical Association, American Dental Association, Michigan State Dental Association, Detroit District Dental Society, American Academy of Pediatrics, American Association of Public Health Dentists, American Public Health Association, Inter-Association Committee on Health (representing American Dental Association, American Hospital Association, American Medical Association, American Nurss Association, American Public Health Association and the American Public Welfare Association), Association of State and Territorial Dental Directors, Assocation of State and Territorial Health Officers, American Pharmaceutical Association, American School Health Association, and College of American Pathologists. In addition, it is a matter of fact, of which this Court may take judicial notice, that as of December 31, 1962, 43,750,878 people of 2,317 communities in the United States, including 12 of the 18 major cities, were drinking water containing supplemental fluoride. Of this total, 72 Michigan communities were supplying approximately 1,250,000 people with water containing a fluoride supplement.
It does not appear that plaintiffs filed any affidavits, depositions, or other types of proofs in opposition to the materials supporting defendants' motion. Plaintiffs say, however, that they should have been permitted to produce proofs, on trial, to show that (1) fluoridation of the water supply constitutes experimentation upon and treatment of the bodies of water users; (2) the object of the ordinance could be secured without violation of their rights; and (3) that harm to their bodies may result from such fluoridation. All of these bear on whether there was a constitutional exercise of the police power. This, then, projects the question of the propriety of disposition of the case by summary judgment without according plaintiffs an opportunity of a trial at which to advance such proofs.
Defendants' motion for summary judgment stated that it was planted on 1963 GCR 117.2(1) in that plaintiffs' complaint had failed to state a claim upon which relief could be granted, and, further, that plaintiffs' complaint attacked the constitutionality of the ordinance and the issues so raised presented only questions of law without raising any properly pleaded, genuine issue as to any material fact. The trial court's judgment stated that it was to be entered because of plaintiffs' failure to state a claim upon which relief could be granted. Plaintiffs say, however, that issues of fact about fluoridation were raised by the pleadings which entitled them to trial and determination thereof. In turn, defendants stress that what plaintiffs had to offer by way of testimony concerning fluoridation was not as to facts but opinions, expert and lay.
In Whittenberg v. Carnegie, 328 Mich. 125, 42 N.W.2d 900, this Court said:
‘The mere existence of issues of fact is, however, no bar to entry of summary judgment for defendants, if, upon resolving all such issues in favor of plaintiffs, the defendants would still be entitled to a judgment as a matter of law. Jones v. Wayne Circuit Judge, 253 Mich. 515, 235 N.W. 238.’
In Davis v. Kramer Bros. Freight Lines, Inc., 373 Mich. 594, 130 N.W.2d 419, we said, in affirming a summary judgment:
‘We think appellants may have misconceived the issue; that disputed issues of fact arose by reason of certain claims of plaintiffs in undoubtedly true. The question, however, is whether those fact issues were material to the controlling legal principle and to the ground upon which summary judgment was granted.’
Our inquiry must go, then, to whether there was an issue at to material facts, not just immaterial facts or opinions, and whether acceptance as true of all that plaintiffs say they could have proved under their pleadings would have entitled them to the injunctive relief sought or would have left defendants entitled still to a judgment as a matter of law. Preliminary to ascertaining whether there was an issue as to facts which were material, the question of their materiality must be resolved by consideration of precisely what it is that must be decided in this case on the merits as to constitutionality of the ordinance.
With respect to the chief controversy herein, whether the ordinance is a reasonable and lawful exercise of the police power and hence constitutional, it is fortunate, for our guidance, that the supreme court of the United States has spoken in Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643. In that case a statute of Massachusetts was involved making it a criminal offense for a person over 21 years of age and not under guardianship to refuse to comply with a city board of health requirement to be vaccinated for small pox at public expense. Defendant was on trial for refusing to comply, in violation of the statute. The prosecution contended itself with proof of the board's having required vaccination and having advised defendant thereof and defendant's noncompliance, but offered no other evidence. Defendant offered proofs purporting to show that vaccinations were injurious, had no relationship to public health and were not a scientifically accepted means of preventing smallpox. The trial court rejected defendant's offers of such proofs on the ground that they were immaterial. After conviction he appealed to the Massachusetts supreme judicial court, which affirmed, sustained the trial court's rulings on proffered proofs, and upheld the constitutionality of the statute and board action against the objections of the defendant, which were similar to those raised here. On appeal, the United States supreme court affirmed, quoting with approval from the opinion of the Massachusetts court, as follows:
“The other eleven propositions all relate to alleged injurious or dangerous effects of vaccination. The defendant ‘offered to prove and show by competent evidence’ these so-called facts. Each of them, in its nature, is such that it cannot be stated as a truth, otherwise than as a matter of opinion. The only ‘competent evidence’ that could be presented to the court to prove these propositions was the testimony of experts, giving their opinions. ...If the defendant had been permitted to introduce such expert testimony as he had in support of these several propositions, it could not have changed the result. It would not have justified the court in holding that the legislature had transcended its power in enacting this statute on their judgment of what the welfare of the people demands.”
The United States supreme court went on to say, inter alia:
‘According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety. ...It is equally true that the state may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety. ...
‘...The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.’
‘...the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large, was arbitrary and not justified by the necessities of the case. ...An American citizen, arriving at an American port on a vessel in which, during the voyage, there had been cases of yellow fever or Asiatic cholera, he, although apparently free from disease himself, may yet, in some circumstances, be held in quarantine against his will on board of such vessel or in a quarantine station, until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared. The liberty secured by the 14th Amendment, this court has said, consists, in part, in the right of a person ‘to live and work where he will’ ( Allgeyer v. Louisiana, 165 U.S. 578, 41 L.Ed. 832, 17 Sup.Ct.Rep. 427); and yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense. It is not, therefore, true that the power of the public to guard itself against imminent danger depends in every case involving the control of one's body upon his willingness to submit to reasonable regulations established by the constituted authorities, under the sanction of the state, for the purpose of protecting the public collectively against such danger. ...
‘Looking at the propositions embodied in the defendant's rejected offers of proof, it is clear that they are more formidable by their number than by their inherent value. Those offers in the main seem to have had no purpose except to state the general theory of those of the medical profession who attach little or no value to vaccination as a means of preventing the spread of smallpox, or who think that vaccination causes other diseases of the body. What everybody knows the court must know, and therefore the state court judically knew, as this court knows, that an opposite theory accords with the common belief, and is maintained by high medical authority. We must assume that, when the statute in question was passed, the legislature of Massachusetts was not unaware of these opposing theories, and was compelled, of necessity, to choose between them. It was not compelled to commit a matter involving the public health and safety to the final decision of a court or jury. It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain.’
The United State supreme court quoted from Viemeister v. White, 179 N.Y. 235, 72 N.E. 97, 70 L.R.A. 796, as follows:
“It must be conceded that some laymen, both learned and unlearned, and some physicians of great skill and repute, do not believe that vaccination is a preventive of smallpox. The common belief, however, is that it has a decided tendency to prevent the spread of this fearful disease, and to render it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of the people, as well as by most members of the medical profession. It has been general in our state, and in most civilized nations for generations. It is generally accepted in theory, and generally applied in practice, both by the voluntary action of the people, and in obedience to thecommand of law. Nearly every state in the Union has statutes to encourage, or directly or indirectly to require, vaccination; and this is true of most nations of Europe. ...
“A common belief, like common knowledge, does not require evidence to establish its existence, but may be acted upon without proof by the legislature and the courts. ...
“The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive; for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free country, where the government is by the people, through their chosen representatives, practical legislation admits of no other standard of action, for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not. Any other basis would conflict with the spirit of the Constitution, and would sanction measures opposed to a Republican form of government. While we do not decide, and cannot decide, that vaccination is a preventive of smallpox, we take judicial notice of the fact that this is the common belief of the people of the state, and, with this fact as a foundation, we hold that the statute in question is a health law, enacted in a reasonable and proper exercise of the police power.' 179 N.Y. 235, 72 N.W. 97.'
The United States supreme court then said:
‘Since, then vaccination, as a means of protecting a community against smallpox, finds strong support in the experience of this and other countries, no court, much less a jury, is justified in disregarding the action of the legislature simply because in its or their opinion that particular method was-perhaps, or possibly-not the best either for children or adults. ...
‘We are not prepared to hold that a minority, residing or remaining in any city or town where smallpox is prevalent, and enjoying the general protection afforded by an organized local government, may thus defy the will of its constituted authorities, acting in good faith for all, under the legislative saction of the state. If such be the privilege of a minority, then a like privilege would belong to each individual of the community, and the spectacle would be presented of the welfare and safety of an entire population being subordinated to the notions of a single individual who chooses to remain a part of that population. We are unwilling to hold it to be an element in the liberty secured by the Constitution of the United States that one person, or a minority of persons, residing in any community and enjoying the benefits of its local government, should have the power thus to dominate the majority when supported in their action by the authority of the state. While this court should guard with firmness every right appertaining to life, liberty, or property as secured to the individual by the supreme law of the lane, it is of the last importance that it should not invade the domain of local authority except when it is plainly necessary to do so in order to enforce that law. The safety and the health of the people of Massachusetts are, in the first instance, for that commonwealth to guard and protect. They are matters that do not ordinarily concern the national government. So far as they can be reached by any government, they depend, primarily, upon such action as the state, in its wisdom, may take; and we do not perceive that this legislation has invaded any right secured by the Federal Constitution.’
From the above language of the United States Supreme Court the rule clearly appears that the court may take judicial notice of the common knowledge or belief, as evidenced by the above listed public statements, affidavits and official actions, that fluoridation is benefical to prevent dental caries and so improve public health. Further, that proofs of the character which plaintiffs say they might have adduced on trial could not have changed the results because a difference of opinion, whether expert or lay, as to the merits or demerits of fluoridation with respect to public health presents a question for legislative, not judicial, determination. It follows that this case could be and was properly disposed of, as a question of law, by summary judgment. This follows, as well, from the above cited Michigan decisions because there was no issue of material or controlling facts, the so-called factual disputes actually being matters of opinion, relating to the efficacy or effects of fluoridation. Hence, they could not be decisive of whether the police power was properly exercised within constitutional limitations.
The Jacobson Case fully answers plaintiffs' questions as to the constitutionality of the public health measure.FN1 It is true that the smallpox disease involved in that case is infectious or contagious while dental caries is not. Plaintiffs cite no cases to the effect that element is essential to the power of the State to adopt and enforce regulations designed to protect or improve public health. We conceive of no sound reason for so holding. To the contrary are: Readey v. St. Louis County Water Co., Mo., 352 S.W.2d 622; Dowell v. City of Tulsa, Okl., 273 P.2d 859; Kraus v. Cleveland, 163 Ohio St. 559, 127 N.E.2d 609; Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352; Froncek v. Milwaukee, 269 Wis. 276, 69 N.W.2d 242; Baer v. City of Bend, 206 Ore. 221, 292 P.2d 134.
FN1 Readey v. St. Louis County Water Co., Mo., 352 S.W.2d 622 (certiorari denied 371 U.S. 8, 83 S.Ct. 20, 9 L.Ed.2d 47), contains citations of a number of cases in the several states upholding the constitutionality and validity of fluoridation measures. Plaintiffs do not cite any to the contrary and we find none.
Michigan Constitution of 1908, art. 8, § 20, in effect when the ordinance was adopted and when judgment entered herein, empowered and directed the legislature to provide by general law for the incorporation of cities. Section 21 provided that cities shall have power to adopt charters and to pass ordinances relating to municipal concerns. The legislature by P.A.1909, No. 279, provided that each city charter shall provide for the public health. The people of Detroit adopted a charter under such authority. Title III, ch. 1, § 1, of the charter vests the legislative power of the city in a common council. Section 12 thereof provides that the permitted legislative powers include adoption of ordinances to promote public health and also to prescribe the duties of all city officers. Title IV, ch. 1, § 12, provides, that city officers shall have the duties prescribed by the council by ordinance. Title IV, ch. 12, § 1, provides for a board of water commissioners and section 7 thereof provides that it shall have duties to be exercised in accordance with city ordinances, including supplying the city with sufficient pure and wholesome water. We think, contrary to plaintiffs' contentions, that these constitutional, statutory and charter provisions constitute adequate authority for enactment of the ordinance in question by the council. It does not conflict with the charter requirement for furnishing pure and wholesome water. 56 Am.Jur., Waterworks, § 75, pp. 980, 981, and Commonwealth v. Towanda Water Works, 1 Monag. (Pa.) 500, 15 A. 440.
Dowell v. City of Tulsa, supra, and Kaul v. Chehalis, supra, hold that fluoridation of the public water supply is not, as plaintiffs here contend, the practice of medicine or dentistry or treatment of children by health officers. We agree.
Judgment affirmed. No costs, a public question being involved.
KELLY, SOURIS, SMITH, O'HARA and ADAMS, JJ., concurred with DETHMERS, J.
KAVANAGH, C. J., and BLACK, J., concurred in result.
Mich. 1965
Rogowski v. City of Detroit
374 Mich. 408, 132 N.W.2d 16

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Minnesota State Board of Health v. City of Brainerd

Minnesota, Unlicensed Practice of Medicine/Compulsory Medication, Due Process Violations, Right to privacy, State police power

Plaintiff

Minnesota Board of Health

Defendant

City of Brainerd

State

Minnesota

Other Parties

Dr. Warren R. Lawson, Mayor of Brainerd, City Council of Brainerd, Water and Light Board

Case Tags

- Unlicensed Practice of Medicine/Compulsory Medication

- Due Process Violations

- Right to privacy

- State police power

Citation

308 Minn. 24; 241 N.W.2d 624 (Minn. 1976)

Year

1976-00-00T00:00:00

Court Name

Supreme Court of Minnesota

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Laughlin M

Opinion Text

MacLAUGHLIN, Justice.
The issue on this appeal is whether the appellant city of Brainerd must fluoridate its municipal water supply in compliance with Minn.St. 144.145. The trial court rejected appellants' arguments that the statute is unconstitutional and issued a peremptory writ of mandamus commanding Brainerd to comply with the law. We affirm.
In 1967, the Minnesota Legislature enacted what is commonly referred to as the Minnesota Fluoridation Law, Minn.St. 144.145. The statute required that prior to January 1, 1970,-
‘...the person, firm, corporation, or municipality having jurisdiction over a municipal water supply, whether publicly or privately owned or operated, shall control the quantities of fluoride in the water so as to maintain a fluoride content prescribed by the state board of health.’
In 1969, the Minnesota State Board of Health adopted regulations which require that the fluoride content of municipal water supplies be maintained at an average concentration of 1.2 milligrams per liter. Minn.Reg.1969 MHD 112(b) (now Minn.Reg. MHD 138).
In 1972, Minnesotans Opposed to Forced Fluoridation (MOFF), a private nonprofit corporation, sought an injunction against enforcement of the fluoridation statute in the city of Brainerd. The city of Brainerd and the Minnesota State Board of Health were named as defendants. In that action the trial court found the fluoridation law to be a valid exercise of legislative authority which did not violate the constitutional rights of the citizens of the state nor constitute pollution within the meaning of the Environmental Rights Act. The court therefore denied the injunction and no appeal was taken.
After this decision, the Minnesota State Board of Health attempted to persuade Brainerd to fluoridate its water. During this time the city of Brainerd held a special referendum which resulted in a vote of 1,863 to 199 against fluoridation and a vote of 1,697 to 325 in favor of holding a ‘convention of the people’ to ‘deliberate on the constitutionality of forced fluoridation.’ The total membership of the ‘convention of the people’ was the mayor, members of the city council, and members of the water and light board of the city of Brainerd. On July 5, 1974, this convention declared s 144.145 and Minn.Reg.1969 MHD 112(b) to be an unconstitutional invasion of individual rights.
On September 5, 1974, the State Board of Health filed a petition for a writ of mandamus after a previous petition was dismissed for insufficient pleading. Appellants answered the petition, and respondent moved for judgment on the pleadings. On December 5, 1974, the trial court issued a peremptory writ of mandamus. In its memorandum the trial court concluded that appellants were barred by the judgment in the MOFF proceeding from relitigating the validity of the fluoridation law. The trial court further found that the fluoridation law was not nullified by the Brainerd convention, that the city was not entitled to an administrative hearing prior to fluoridation, and that mandamus was the proper remedy to compel Brainerd to comply with the law. The city of Brainerd and its officials appeal this decision.
1. The major issue raised on this appeal is whether the Minnesota Fluoridation Law is constitutional. However, respondent first questions whether the city of Brainerd may properly raise such a challenge. Respondent contends that Brainerd is barred under the doctrine of res judicata from bringing this action since Brainerd was a party in MOFF v. City of Brainerd and Minnesota State Board of Health, in which the constitutionality of the fluoridation law was upheld. In that case, MOFF sought an injunction against the fluoridation of Brainerd's water supply naming the city of Brainerd as one of the defendants in the action. The trial court denied the injunction, and no appeal was taken. In the current action, the State Board of Health seeks a writ of mandamus to compel the city of Brainerd to fluoridate its water supply pursuant to the statute and regulation. The trial court concluded that Brainerd may not now oppose the fluoridation since it had the ‘opportunity and incentive’ to voice any objection it had in the MOFF proceedings; and even though it failed to do so, it is nevertheless bound by that judgment.
We have observed that res judicata-
‘...operates as an absolute bar to a subsequent suit on the same cause of action, concluding the parties and their privies not only as to every matter that was litigated but also as to any other claim or defense which might have been litigated.‘ Howe v. Nelson, 271 Minn. 296, 301, 135 N.W.2d 687, 691 (1965).
This rule is based upon ‘considerations of public policy which demand an end to litigation where a party has had a full, free, and untrammeled opportunity to present facts pertinent to a decisive issue.‘ Lustik v. Rankila, 269 Minn. 515, 520, 131 N.W.2d 741, 745 (1964).
Although it is a close question, we conclude that Brainerd did not have such an opportunity. It must be remembered that Brainerd was merely a nominal party in the first action and appeared solely in its capacity as proprietor of the water supply. Since the first trial, the referendum by the people of Brainerd has activated the city's duty to affirmatively represent the will of its citizens. Had the referendum occurred prior to the time of the first action, Brainerd would certainly have actively taken part in support of MOFF's position for an injunction against compulsory fluoridation of its water supply. While the question is not free from doubt, we have decided, because of the obvious public purpose to be served by a decision of this case on its merits, that Brainerd is not barred by the doctrine of res judicata.FN1
FN1. Respondent also asserts that appellants' challenge is barred by the doctrine of estoppel by inconsistent position. However, the doctrine of estoppel by inconsistent position does not apply to the facts of this case. The rule prohibiting the shifting of position ‘rests largely upon the principle that it results in prejudice to the party who acquiesces in the position first taken.‘ Friend v. Friend, 158 Minn. 31, 38, 196 N.W. 814, 817 (1924). See, also, Behrens v. Kruse, 121 Minn. 90, 98, 140 N.W. 339, 342 (1913). In addition, allowing a party to shift position may also mislead the court. Friend v. Friend, supra. As this court concluded in Moquist v. Chapel, 62 Minn. 258, 260, 64 N.W. 567, 568 (1895), '(h)aving submitted his case upon one theory of the law and facts, a party cannot complain if it is correctly decided according to that theory, or be afterwards heard to say, if some other theory had been presented, it should have been decided differently.’
Thus, the doctrine is primarily concerned with ensuring fair trial tactics within a single litigation. In any case, respondent has not even attempted to show how it has been led to change its position for the worse by any act of appellants or how the court has been misled. In sum, the doctrine of estoppel by inconsistent position is simply not applicable to the instant case.
2. Respondent also argues that appellant city of Brainerd, as a public body acting through public officials, is without standing to challenge the constitutionality of the fluoridation statute. In State ex rel. Clinton Falls Nursery Co. v. County of Steele, 181 Minn. 427, 430, 232 N.W. 737, 738 (1930), we stated:
‘...The better doctrine supported by the weight of authority is that (a public) official so charged with the performance of a ministerial duty will not be allowed to question the constitutionality of such a law. ... Officials acting ministerially are not clothed with judicial authority. To permit them to refuse to perform their duty on the ground that the commanding law is unconstitutional would be a dangerous practice in that they who have only ministerial duties would be raising questions affecting the rights of third persons while they themselves would have no direct interest in the question and could not in any event be made responsible.’
However, we added ( 181 Minn. 431, 232 N.W. 738):
‘There is found among the authorities a well recognized exception to the foregoing rule when the rights of the state or the public interest are involved.’
See, also, Elwell v. County of Hennepin, 301 Minn. 63, 221 N.W.2d 538 (1974).
In Commr. of Taxation v. Crow Wing County, 275 Minn. 9, 13, 144 N.W.2d 717, 719 (1966), we recognized a second exception:
‘...In our view the interest required to give standing to a political subdivision must be one predicated upon some adverse effect upon the governmental unit.’
See, also, Village of Burnsville v. Onischuk, 301 Minn. 137, 222 N.W.2d 523 (1974).
We hold that the city of Brainerd has standing to challenge the constitutionality of the fluoridation law under either of the above two exceptions. First, the question of fluoridating the drinking water of Brainerd involves a question of substantial public interest to the people of Brainerd. In view of Brainerd's overall responsibility for providing safe and satisfactory water to its citizens, it is proper that the city have standing to challenge the statute in the public interest. Second, it is alleged by Brainerd that the fluoridation statute has a specific adverse effect upon the city of Brainerd in that it threatens to destroy the city's water filtration system. Thus, Brainerd, in its capacity as proprietor of the water supply, has a very specific and concrete interest in challenging the validity of the statute. Finally, it must be remembered that the standing doctrine is primarily designed to guarantee that there is a sufficient case or controversy between the parties so that the issue is properly and competently presented to the court. It is clear that appellants have vigorously and competently presented the issue to this court. Consequently, ‘(a)t this stage of the litigation it would be a great disservice to the public to decline jurisdiction because the (appellants') standing is somewhat doubtful.‘ Village of Burnsville v. Onischuk, 301 Minn. 137, 143, 222 N.W.2d 523, 527.
3. Before considering appellants' arguments concerning the constitutionality of fluoridation, it is important to understand the factual background of fluoridation. For this purpose we quote at length from the trial court's memorandum in MOFF v. City of Brainerd and Minnesota State Board of Health:
‘Fluoride, the substance in question, is the ion of the element fluorine. It is never found in nature in an isolated form but always in association with other elements, most commonly with calcium. Fluoride is found in all minerals, rocks and soil; it is present in all foods and water consumed by human beings. The addition of fluoride to drinking water, at least in the amounts here contemplated, affects neither the color nor the taste of the water. Fluoride, in common with many other substances such as oxygen, ordinary table salt, vitamin A and vitamin B is toxic when ingested in relatively large amounts. The natural drinking waters of this country vary in fluoride content from a barely discernible trace up to about 15 milligrams per liter or, as it is otherwise expressed, up to about 15 parts per million (ppm). ...
‘In an effort to determine the cause of mottled enamel observed on the teeth of children and adults in certain communities, studies were begun about 70 years ago which ultimately established that an excessive amount of natural fluoride in the drinking water consumed by the residents of said communities caused such mottling, thereafter described as dental fluorosis. During the course of these studies it was observed that these mottled teeth, while cosmetically undesirable in some instances, were otherwise sound and were less susceptible to decay. Without detailing the various studies made, it can be said that by 1945 there was good cause to believe that the addition of fluoride in an amount varying from 1 to 1.5 ppm to water supplies being consumed by children would serve to reduce the incidence of dental decay in said children without serious cosmetic effects by reason of dental fluorosis. Beginning in 1945 and continuing to date municipalities and states have been acting to fluoridate municipal water supplies by the addition of fluoride in amounts up to 1.5 ppm. The studies which were begun in the 1930's to determine the effect of fluoride on teeth have continued to date and have established beyond any serious question that persons who use waters containing 1.0 to 1.5 ppm of fluoride, either naturally or artificially, from infancy to the age of 10 or 12 years have significantly fewer dental caries in their permanent teeth and without dental fluorosis to an unacceptable degree.
‘This widespread acceptance of fluoridation as an effective means to prevent dental caries has led to the controlled fluoridation of the water supplies in over 4,800 communities in the United States and these communities include most of the large cities in the nation. There are presently about 100 million people in this country consuming water having a fluoride content between .7 ppm and 1.5 ppm. In Minnesota over 90% Of the more than 650 communities having a municipal water supply have fluoridated the same. ...A substantial majority of the citizens of this state presently drink fluoridated water and most of this majority have been doing so for more than 15 years.
‘Fluoridation of public water supplies has been advocated or recommended by more than forty national professional and scientific organizations including the American Medical Association, American Dental Association, American Institute of Nutrition, American Association for the Advancement of Science, American Association of Dental Schools, American Cancer Society and many others of like standing and repute. Fluoridation now has and for many years has had the enthusiastic endorsement and support of the U.S. Public Health Service.’
At least in part because of this endorsement by the scientific community, the Minnesota Legislature enacted Minn.St. 144.145 requiring the fluoridation of all public water supplies. Appellants argue, though, that fluoridation presents a serious health hazard and calls to our attention certain scientific studies which indicate the dangers of fluoridation. However, it is not this court's function, at least in the absence of overwhelming evidence to the contrary, to second-guess the scientific accuracy of a legislative determination of fact. Nor is it within our province to determine the wisdom of or necessity for a legislative enactment. As we said in Beck v. Groe, 245 Minn. 28, 40, 70 N.W.2d 886, 895 (1955):
‘The legislature is in the first instance the judge of what is necessary for the public welfare. The earnest conflict of serious opinion does not suffice to bring it within the range of judicial cognizance. Courts cannot pass on the soundness or expediency of theories embodied in statutes enacted in the exercise of the police power for the social benefit of the citizen and the public welfare. The control, regulation, and restrictions to be imposed, to attain, so far as may be, results consistent with the public welfare, are purely of legislative cognizance. The legislative determination of the control to be applied is final, except when so arbitrary as to be violative of the constitutional rights of the citizen.’
In enacting the fluoridation law, the legislature relied on the overwhelming weight of scientific opinion that fluoridation afforded a safe and effective means of reducing dental caries. We cannot say that this legislative determination is so clearly erroneous as to be arbitrary and violative of due process. State v. Edwards, 287 Minn. 83, 87, 177 N.W.2d 40, 43 (1970). In fact, the state courts have been unanimous in holding fluoridation to be a proper exercise of the state's police power. See, Graybeal v. McNevin, 439 S.W.2d 323 (Ky.1969); Opinion of the Justices, 243 A.2d 716 (Del.1968); Attaya v. Town of Gonzales, 192 So.2d 188 (Ct.App.La.1966); Paduano v. City of New York, 45 Misc.2d 718, 257 N.Y.S.2d 531, affirmed, 24 App.Div.2d 437, 260 N.Y.S.2d 831 (1965), affirmed, 17 N.Y.2d 875, 271 N.Y.S.2d 305, 218 N.E.2d 339 (1966), certiorari denied, 385 U.S. 1026, 87 S.Ct. 754, 17 L.Ed.2d 674 (1967); Hall v. Bates, 247 S.C. 511, 148 S.E.2d 345 (1966); Wilson v. City of Mountlake Terrace, 69 Wash.2d 148, 417 P.2d 632 (1966); Rogowski v. City of Detroit, 374 Mich. 408, 132 N.W.2d 16 (1965); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1964), certiorari denied, 379 U.S. 964, 85 S.Ct. 655, 13 L.Ed.2d 558 (1965); Stroupe v. Eller, 262 N.C. 573, 138 S.E.2d 240 (1964); City Commission of Fort Pierce v. State ex rel. Altenhoff, 143 So.2d 879 (Ct.App.Fla.1962), appeal dismissed, 154 So.2d 208 (Ct.App.Fla.1963); Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W.2d 569 (1961); Readey v. St. Louis County Water Co. 352 S.W.2d 622 (Mo.1961), appeal dismissed, 371 U.S. 8, 83 S.Ct. 20, 9 L.Ed.2d 47 (1962); Birnel v. Town of Fircrest, 53 Wash.2d 830, 335 P.2d 819 (1959), appeal dismissed, 361 U.S. 10, 80 S.Ct. 71, 4 L.Ed.2d 51 (1959); Teeter v. Municipal City of LaPorte, 236 Ind. 146, 139 N.E.2d 158 (1956); Baer v. City of Bend, 206 Or. 221, 292 P.2d 134 (1956); Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609 (1955), appeal dismissed, 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463 (1956); Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352 (1955); Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242 (1955); Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142 (1954), appeal dismissed, 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701 (1954); De Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98 (1953), certiorari denied, 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135 (1954); Dowell v. City of Tulsa, 273 P.2d 859, 43 A.L.R.2d 445 (Okl.1954), certiorari denied, 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715 (1955). Therefore, for purposes of this decision, we must accept as factual the legislative determination that fluoride is a safe and effective means of reducing dental caries.
Appellants proceed to argue, however, that ‘the question is not whether fluoridation may be good, but whether the people have a constitutional prerogative to refuse.’ (Italics omitted.) Appellants contend that there is such a prerogative which derives from the constitutional right of privacy. FN2
FN2. Appellants also argue that Brainerd itself has a constitutional right to community privacy. Appellants, however, have not cited for us any authority to support the proposition that a community has a constitutional right of privacy. Whatever privacy rights Brainerd has in this matter must derive from the individual constitutional rights of its citizens.
While the constitution does not explicitly mention any right of privacy, the United States Supreme Court has recognized, in varying contexts, a constitutional right of personal privacy. This right of privacy has been found in the First Amendment ( Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542, 549 (1969)); in the Fourth and Fifth Amendments ( Terry v. Ohio, 392 U.S. 1, 8, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, 898 (1968); Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 510, 19 L.Ed.2d 576, 581 (1967); and Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886)); in the penumbras of the Bill of Rights ( Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510, 514 (1965)); in the Ninth Amendment, ( Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510, 516 (Goldberg, J., concurring)); and in the concept of liberty guaranteed by the Fourteenth Amendment ( Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 1045 (1923)). In Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147, 176 (1973), the Supreme Court concluded:
‘... These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,‘ Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), are included in this guarantee of personal privacy.’
At the core of the privacy decisions, in our judgment, is the concept of personal autonomy-the notion that the constitution reserves to the individual, free of governmental intrusion, certain fundamental personal decisions about how he or she will conduct his or her life. See, Price v. Sheppard, Minn., 239 N.W.2d 905, filed February 20, 1976. Thus, in Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349, 362 (1972), the Supreme Court held that the right of privacy protects an individual's right ‘to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child’; and, in Roe v. Wade, supra, the court held that the right of privacy protects an individual's right to decide ‘whether or not to terminate her pregnancy.‘ 410 U.S. 153, 93 S.Ct. 727, 35 L.Ed.2d 177.
While the United States Supreme Court has never so held, the right of personal privacy could also extend to protect an individual's decision regarding what he will or will not ingest into his body. Indeed, this concept of bodily integrity is rooted in common law. As the Supreme Court stated in Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734, 737 (1891):
‘No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.’
Whether one's right to bodily integrity is designated a right of personal privacy or not, though, does not alter our conclusion that the right, like other constitutional rights, in not absolute. As the Supreme Court held in Roe v. Wade (410 U.S. 154, 93 S.Ct. 727, 35 L.Ed.2d 177):
‘We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.’
And in specific reference to an individual's right of bodily integrity, the court stated in Breithaupt v. Abram, 352 U.S. 432, 439, 77 S.Ct. 408, 412, 1 L.Ed.2d 448, 453 (1957):
‘As against the right of an individual that his person be held inviolable ... must be set the interests of society... .’
Thus, in Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908, 918 (1966), a case involving a governmental intrusion into an individual's body for blood to be analyzed for alcohol content, the Supreme Court concluded that the constitution does not protect an individual ‘against all intrusions' but only ‘against intrusions which are not justified in the circumstances, or which are made in an improper manner.’
Therefore, to properly determine the constitutionality of fluoridation, we must consider (1) the importance of the state's purpose for requiring fluoridation; (2) the nature and magnitude of the effect of forced fluoridation on the individual; (3) whether the state's purpose justifies the intrusion of forced fluoridation; and (4) whether the means adopted by the state to accomplish its purpose is proper and reasonable.
It seems clear that the state has a substantial interest in fluoridating the public drinking water to prevent tooth decay.
‘Although not a contagious disease, dental caries, or tooth decay, presently constitutes one of the most challenging health problems in the United States. By the time they reach adulthood, some ninety-nine percent of the American population has had some experience with dental caries. Half of the population over fifty-five have no natural teeth at all. Compounding this problem of dental health is the great shortage of dentists, dental hygienists, and dental assistants. It has been estimated that approximately one-third of the population sees a dentist annually, and eighteen percent has never seen a dentist. A billion dental manhours would have been required in 1962 just to handle the then current backlog of dental problems. The dental manpower currently available cannot physically provide for more than half of the existing dental needs.’ Farrer, Fluoridation: Compulsory Medication of Municipal Water Supplies? 5 Urban Lawyer 504. FN3
FN3. See, also, Clark & Sophy, Fluoridation: The Courts and the Opposition, 13 Wayne L.Rev. 338 (1966).
Aside from this enormous drain on health facilities, the state has a direct interest in maintaining public health. The health of one's childrenFN4 is not exclusively a personal or individual concern. The Supreme Court of Louisiana stated:
FN4. Fluoridation has its most beneficial effect upon individuals who have consumed fluoridated water from infancy to the age of 10 or 12 years. See, the excerpt from the trial court's memorandum in MOFF v. City of Brainerd and Minnesota State Board of Health, quoted above.
‘The health of the children of a community is of vital interest and of great importance to all the inhabitants of the community. Their health and physical well-being is of great concern to all the people, and any legislation to retard or to reduce disease in their midst cannot and should not be opposed on the ground that it has no reasonable relation to the general health and welfare.’ Chapman v. City of Shreveport, 225 La. 859, 870, 74 So.2d 142, 145, appeal dismissed, 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701 (1954).
We next consider the nature and magnitude of the effect of fluoridation on the individual. While forced fluoridation does intrude on an individual's decision whether or not to ingest fluoride, the impact of this intrusion on an individual's life is negligible. This becomes particularly evident when compared to the impact involved in the Supreme Court's privacy decisions such as in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349, and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, where the state's intrusion had the impact of depriving the individual of his or her freedom to decide whether or not to have children. While forced fluoridation does, to a limited extent, infringe upon an individual's freedom to decide whether he will or will not ingest fluoride, such an infringement, absent any significant adverse consequences to the individual, cannot be accorded substantial weight. The difficulty with according weight to such a prerogative in a case of this type is that if fully recognized it would confer upon the individual the prerogative to refuse to allow the government to chlorinate the water or to take similar actions which it has determined to be in the best interests of public health. Such an unbalanced allocation of decisionmaking authority is unacceptable. In Roe v. Wade, 410 U.S. 113, 154, 93 S.Ct. 705, 727, 35 L.Ed.2d 147, 177, the Supreme Court indicated that it has consistently ‘refused to recognize an unlimited right (to do with one's body as one pleases).’
Appellants contend that the intrusion is not justified based on Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905), in which the United States Supreme Court upheld compulsory vaccination in the face of a threatened smallpox epidemic as a valid exercise of police power. Appellants insist that compulsory medication, that is, intrusion into an individual's bodily integrity, was allowed in Jacobson only because of the great danger to the public welfare posed by the contagious disease of smallpox. We note, however, that the court in Jacobson, quoting Crowley v. Christensen, 137 U.S. 86, 89, 11 S.Ct. 13, 15, 34 L.Ed. 620, 621 (1890), stated the governing principle in broad terms ( 197 U.S. 26, 25 S.Ct. 361, 49 L.Ed. 650):
“...The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community.”
Upon balancing the substantial public health benefit of fluoridation against its innocuous effect on the individual, we have concluded that fluoridation is a justified intrusion into an individual's bodily integrity. As the Illinois Supreme Court stated in Schuringa v. City of Chicago, 30 Ill.2d 504, 518, 198 N.E.2d 326, 334 (1964):
‘...(F)luoridation programs, even if considered to be medication in the true sense of the word, are so necessarily and reasonably related to the common good that the rights of the individual must give way.’
Finally, we must determine whether the means of achieving the state's purpose is proper and reasonable. After careful consideration, we have concluded that the means adopted by the state to accomplish its purpose in the instant case is not particularly offensive or unusual. Although the actual consumption of water is, in a sense, a private and personal act, the preparation and treatment of that water is a common and accepted public function. In fact, there are numerous governmental regulations controlling the ingredients in the food we eat. Such quality-control measures are inherent in a technologically advanced society and do not ordinarily affront a person's sensibilities.
The public health of all the state's citizens, involving as it does a social condition, is a distinctly legislative concern. The Minnesota Legislature has determined that the health, welfare, and safety of the public is best served by providing fluoride through the public drinking water. While we have great respect for the strong and sincerely held opinion of many of the citizens of Brainerd, FN5 we reiterate that it is not this court's function, absent a clear violation of constitutional rights, to reconsider the wisdom or necessity of a legislative decision. Therefore, after careful consideration, we find the Minnesota Fluoridation Law, Minn.St. 144.145, to be constitutional.
FN5. While we agree that Brainerd's ‘constitutional convention’ was an eloquent way for the people of Brainerd to express their feelings on the subject of fluoridation, we do not recognize the resolutions of that convention as binding authority on the constitutionality of the fluoridation law. Authority to determine the constitutionality of laws resides in the judiciary. As the United States Supreme Court recently stated in United States v. Nixon, 418 U.S. 683, 703, 94 S.Ct. 3090, 3105, 41 L.Ed.2d 1039, 1061 (1974): ‘... Many decisions of this Court...have unequivocally reaffirmed the holding of Marbury v. Madison, 1 Cranch. 137, 2 L.Ed. 60 (1803), that ‘(i)t is emphatically the province and duty of the judicial department to say what the law is.“ This is an indispensable feature of our constitutional system. To the extent that appellants' claim urges that final authority to interpret the law does not reside with the courts, it must be rejected. ’...To yield to such a claim would be to enthrone official lawlessness and lawlessness if not checked is the precursor of anarchy.‘ Cooper v. Aaron, 358 U.S. 1, 22, 78 S.Ct. 1401, 1412, 3 L.Ed.2d 19, 20 (1958).
Appellant city finally argues that it is entitled to an administrative due process hearing before it can be required to fluoridate its water supply. The purpose of such a hearing would be to determine the effect of fluoridation on Brainerd's water filtration system. Appellant has alleged that fluoridation would upset the delicate chemical balance of its unique filtration system and cause a dangerous accumulation of sludge in the city's pipes. However, the fact that fluoridation would require the city of Brainerd to incur expense in remedying, or even replacing, its present filtration system does not afford it a constitutional right to a due process hearing. As a governmental subdivision, the city of Brainerd is not a ‘person’ for purposes of the due process clause and therefore has no constitutional right to a due process hearing before being deprived of property. Independent School Dist. No. 581 v. Mattheis, 275 Minn. 383, 147 N.W.2d 374 (1966); see, also Waters v. Putnam, 289 Minn. 165, 183 N.W.2d 545 (1971). This is because a ‘municipal corporation is, so far as its purely municipal relations are concerned, simply an agency of the state for conducting the affairs of government, and as such it is subject to the control of the legislature. ‘ Williams v. Eggleston, 170 U.S. 304, 310, 18 S.Ct. 617, 619, 42 L.Ed. 1047, 1049 (1898).
The order of the trial court is affirmed.
YETKA, Justice (dissenting).
I dissent. To me it is essential to bear in mind that, unlike the vaccination cases, we are not asked to decide the constitutionality of a law which Directly imposes fluoridation on an unwilling individual. Rather, Minn.St. 144.145 does so only Indirectly by requiring municipalities to fluoridate their water supplies for the purpose of making available publicly-funded fluoride treatment. Presumably those opposed to fluoridation are free to obtain nonfluoridated water from other sources, however impractical and unlikely that may be. Moreover, the law, by its terms falls short of reaching a large number of our population who draw their water from private wells. Undoubtedly were the law otherwise, e.g., compulsory periodic dental application of fluoride for all children, the decision reached by the majority would have been arrived at with greater difficulty.
Equally important, in my judgment, is the distinction between the chlorination of a public water supply and fluoridation. The purpose of the former is to ensure the safety of a water supply for public consumption; the purpose of the latter is to treat individual dental health problems.
The majority concedes that a substantial constitutional right is involved, but that the state's intrusion or infringement upon that right is justified when its interest is balanced against that of the individual. It was my understanding in Price v. Sheppard, minn., 239 N.W.2d 905 (1976), cited in the majority opinion, that even if the state's intrusion is justified, it is not unlimited. In addition ‘(i)t must appear that the means utilized to serve the state's interest are necessary and reasonable, or, in other words, in light of alternative means the least intrusive.’ Minn., 239 N.W.2d 910. I assume this is also what the majority has in mind in assessing the reasonableness of the means chosen by the legislature in enacting Minn.St. 144.145.
Contrary to the conclusion of the majority, it seems to me that in the city of Brainerd, where an overwhelming majority of those participating in a voter referendum indicated their opposition to fluoridation, less intrusive means could and should have been utilized. In fact, the infringement of the rights of the majority could have been avoided altogether. The state's purpose was to make available publicly-funded fluoride treatment, not to impose it directly on individuals. It chose what it obviously considered to be the most efficient means. But it could have achieved that same purpose by compelling the city to furnish fluorine tablets or dental application to those who wished it, without infringing on the rights of the majority. Moreover, it is my understanding from the record that Brainerd is willing to provide fluoride in such an alternative fashion to those who wish it.
Moreover, it must be remembered that while fluoridating a water supply may be an efficient means of achieving the state's purpose, it is apparently not the most economical method in Brainerd. Carl Zapffe, Ph. D., a scientist specializing in chemistry, physics and metallurgical engineering, averred in an affidavit that there was a ‘strong likelihood’ that the ‘complicated and delicate chemical balance’ in the Brainerd water filtration system ‘due to the excessive presence of manganese and iron oxides dissolved in the natural water’ could be destroyed by the addition of fluoride in the amounts proposed by the state.
There has also been some evidence presented in the case that fluorine might be a carcinogen. I must say that the evidence presented was very weak and could have been more decisive in this case, but this court ought to take judicial notice of the fact that scientists are finding every day that additives, chemical and otherwise, of all sorts are seriously suspect in the rising rate of cancer in the United States. When there is not a showing of a great overriding state interest and fluorine is readily available for those who want it by other means, why shouldn't the wishes and the rights of the local citizens, whether individually or as a group, be respected and be paramount?
There must be a point at which state action must yield to the asserted rights of the individual. I believe that this point has clearly been reached in this case. Central to our notion of democracy is the respect for the rights and wishes of the majority. Here the infringement of the majority's rights can be avoided without defeating the legislative purpose of the Minnesota Fluoridation Law.
For these reasons I must respectfully dissent.
OTIS, J., took no part in the consideration or decision of this case.

COIL, Commissioner.
In June 1959 the St. Louis County Council enacted an ordinance which directed the St. Louis County Water Company to introduce a sufficient quantity of the fluoride ion into the water it furnished county consumers to maintain throughout the distribution system a fluoride concentration of approximately one part fluoride per million gallons of water, and which directed the Water Company to make certain tests and keep certain records, and which directed the county health commissioner to make periodic reports to the council on the fluoridation of the water supply and to arrange for surveys and research into the beneficial effect of the program.
Respondents are eight resident taxpayers of St. Louis County and are consumers of water distributed by the Water Company, some of whom resided in various municipalities within the county. They brought an action against the Water Company, the then members of the county council, the county clerk, and the acting county health commissioner, to enjoin the enforcement of the ordinance for the averred reason that it was invalid in that it violated stated provisions of the federal and Missouri Constitutions and provisions of specified state laws.
At the close of respondents' evidence the trial chancellor sustained Water Company's motion to dismiss and there has been no appeal from the ensuing judgment of dismissal. At the close of all the evidence the trial chancellor enjoined the remaining defendants below from enforcing the ordinance for the stated reason that it was void in that it violated provisions of the state and federal constitutions in the respects to be hereinafter noted.
Those defendants have appealed and contend that the trial court erred for the reason that the ordinance is a valid exercise of the county council's police power to promote the public health. Respondents here seek to support the trial court's ruling for the stated reasons that the ordinance is unconstitutional in that it violates the Fourteenth Amendment to the Constitution of the United States and Article I, Section 10 of the Missouri Constitution, V.A.M.S., in that it unduly infringes their and other county residents' freedom of choice in matters relating to bodily care and health by compelling them to drink fluoridated water against their wills; that the ordinance violates the First Amendment to the Constitution of the United States in that it subjects Christian Scientists living in St. Louis County to forced medication contrary to their religious beliefs; that the ordinance violates Article VI, Section 18(c) of the Constitution of Missouri in that it applies to the entire county, including the county municipalities, and therefore its enactment was beyond the power of the county council; and that the enforcement of the ordinance would violate Missouri statutes relating to the adulteration and misbranding of nonalcoholic drinks.
Inasmuch as the validity of the contention that the ordinance violates Article VI, Section 18(c) of the Missouri Constitution depends on the question whether the council had the power and authority to have enacted any ordinance purporting to deal with matters relating to the public health of persons residing within county municipalities, and inasmuch as an affirmance of the trial court's ruling on that question would be dispositive of the case, we shall first consider that contention.
The ordinance in question contemplates, and its enforcement would involve, the addition of a quantity of the fluoride ion to all of the water leaving Water Company's purification plant and such water is sold to consumer residents of St. Louis County who live both within and without incorporated areas of the county, and the water so furnished is, for all practical purposes, the only water available to county residents.
Article VI, Sections 18 through 20, 1945 Missouri Constitution, authorizes special charters for the government of certain counties and authorizes the inclusion of specified provisions in those charters. Section 18(c) is: ‘The charter may provide for the vesting and exercise of legislative power pertaining to public health, police and traffic, building construction, and planning and zoning, in the part of the county outside incorporated cities; and it may provide, or authorize its governing body to provide, the terms upon which the county shall perform any of the services and functions of any municipality, or political subdivision in the county, except school districts, when accepted by vote of a majority of the qualified electors voting thereon in the municipality or subdivision, which acceptance may be revoked by like vote.’ 2 V.A.M.S.
Pursuant to that constitutional authorization, St. Louis County's Home Rule Charter provided in Article III, Section 22(20) that the council should have the power by ordinance ‘To exercise legislative power pertaining to public health, police and traffic, building construction, and planning and zoning, in the part of the County outside incorporated cities, and on such other subjects as may hereafter be authorized by the Constitution or by law, provided that, until superseded by ordinances of the Council, the laws pertaining to said matters shall continue to be valid and effective.’ And Section 22(19) provided that the council should have power by ordinance ‘To provide the terms upon which the County shall perform any of the services and functions of any municipality or political subdivision in the County, except school districts, when accepted by a vote of a majority of the qualified electors voting thereon in such municipality or subdivision, which acceptance may be revoked by a like vote; and to cooperate and contract with the municipalities or political subdivisions in the County as otherwise authorized by this charter and by law.’
It was the opinion of the trial chancellor and it is the contention of respondents here that the ordinance in question violates the constitutional and charter provisions above set forth for the reason that the county council's power to enact public health ordinances was limited to the enactment of ordinances affecting only those areas outside incorporated cities. It is apparent that respondents' position is correct if the council's power in the premises is derived solely from Article VI, Section 18(c) of the Constitution and Article III, Section 22(20) of the County Charter. The fact is, however, that the county council's power in certain matters, including the enactment of ordinances which tend to enhance the public health, is not limited to the power conferred by Article VI, Section 18(c) of the Constitution and set forth in Article III, Section 22(20) of the County Charter. On the contrary, St. Louis County may also exercise the powers pertaining to the public health validly conferred by the state upon counties of the first class. Article IV, Section 37 of the Missouri Constitution declares that ‘The health and general welfare of the people are matters of primary public concern’ and the general assembly shall establish a department of public health and welfare and may grant power with respect thereto counties, cities, or other political subdivisions of the state. The legislature, as directed, established a department of public health and welfare and, among others, enacted Section 192.300 RSMo 1959 and 12 V.A.M.S., which provides in part: ‘The county courts of the several counties of class one are hereby empowered and permitted to make and promulgate such rules, regulations or ordinances as will tend to enhance the public health and prevent the entrance of infectious, contagious, communicable or dangerous diseases into such county; provided such rules, regulations and ordinances shall not be in conflict with any rules or regulations authorized and made by the division of health in accordance with this chapter.’
Article I, Section 2 of the County Charter provides: ‘The County shall have all the powers now or hereafter vested by the Constitution and laws of Missouri in county courts, county offices, counties of the first class, counties having the population or assessed valuation of taxable property of St. Louis County, Missouri, and counties of any other class in which St. Louis County may hereafter be includable, and all the powers provided in this Charter, and all other powers that are necessarily implied under the powers so granted.’
It appears, therefore, that by virtue of the constitutional, statutory, and charter provisions last above set forth, the county council was and is authorized to enact ordinances tending to enhance the health of all the residents of St. Louis County, irrespective of whether they also reside within a municipality. See State ex rel. Shepley v. Gamble, Mo., 280 S.W.2d 656.
Assuming, then, for the present that the ordinance in question is one which was intended to and which does tend to enhance the public health, a question we shall later discuss, we hold that the county council had the authority and the power to enact such an ordinance applicable county-wide and, consequently, that the ordinance does not violate Article VI, Section 18(c) of the Missouri Constitution or Article III, Section 22(20) of the St. Louis County Charter.
It should be here noted that there is no claim or contention that in enacting the ordinance the county council acted arbitrarily or without sufficient investigation or upon insufficient knowledge; nor is there any contention that there was any procedural irregularity with respect to the enactment of the ordinance in question. Even though there is no showing in the present record as to what information the council had upon which it based the exercise of its legislative power in enacting the ordinance, in the absence of any contention as to insufficiency of information and in the absence of any claim of procedural irregularity, we should and do assume that the council had the information and knowledge which the evidence in the present record affords.
As we have heretofore indicated, there is no dispute about the fact that, generally speaking, a resident of St. Louis County, whether within or without a municipality, must use water supplied by the Water Company (although the evidence does show that the City of Kirkwood, a municipality within the county, had been fluoridating its water for a period of two years prior to the trial, but the record does not show whether Kirkwood's water is from some other source or whether that city further treats water which it purchases from the Water Company). Further, there is no dispute about the fact that the Water Company obtains the water it supplies from the Missouri River and that such water as it is taken from the river contains an average of .5 part of the fluoride ion per million gallons of water and that such fluoride content is not removed from the water but remains in it and, thus, that the Water Company, irrespective of the ordinance, furnishes water fluoridated to the level of one-half part fluoride to each one million gallons of water; so that the effect of the ordinance is to require the Water Company only to supplement the existing concentration of fluoride by adding one-half part per million gallons in order that there will be a total of one part fluoride per million gallons of water.
It appears also that there is no dispute about the facts that the fluoride ion in water acts upon the individual who drinks the water rather than upon the water as such as a purifying agent and, consequently, the ordinance requirement for an additional amount of the fluoride ion is for the purpose of affecting the dental health of each individual who consumes the fluoridated water; and that dental caries or tooth decay is not a contagious or communicable disease and cannot produce an epidemic.
Respondents adduced evidence, including the opinions of apparently well-qualified experts, tending to establish the proposition that the ingestion of water containing any fluoride is harmful to the individual consuming it and that water containing one part fluoride to a million gallons of water is harmful in many ways. That evidence tended to show that ten to forty per cent of children between the ages of 5 and 13 who consume water fluoridated one part to a million will have disfigured teeth, including mottled or discolored enamel; that older people consuming such water will suffer from gastrointestinal disturbances including nausea, vomiting, constipation, and diarrhea; that they will also sustain damage to the liver and kidneys and, under some circumstances, to other vital organs such as the aorta, and suffer abnormalities in bone growth and bone structure; that pregnant women consuming such water will sustain injury and bear children whose teeth will show later damage; that certain people, as a result of drinking such water, develop arthritic changes in the lower spine, neuromuscular changes in the arms and legs, partial palsy of the arms and legs, abnormal reflexes, severe headaches, and extreme weakness.
Respondents' evidence tended to show further that fluorine is not an essential element of the human body and that all chemicals bearing the fluoride ion are insidious poisons and are cumulative in the human body; that due to the fact that different people drink different amounts of water and the same person consumes different amounts of water depending upon the time of year and for other reasons, it is difficult if not impossible to control the amount of the fluoride ion ingested by a particular individual when a specified amount is introduced into a public water supply; and that there are methods other than the addition of the fluoride ion to the public water supply by which fluorine may be applied to the teeth, such as an application by a dentist directly on the teeth or by fluoridating an individual user's water supply by dissolving tablets therein.
Appellants adduced evidence, including the opinions of apparently well-qualified experts, tending to establish the proposition that fluoridation of water as proposed by the ordinance in question would result in harm to no one but, on the contrary, would be highly beneficial to the residents of St. Louis County in that it would reduce dental decay in children up to 14 years of age by as much as sixty-five per cent by means of hardening the enamel on their teeth, and that this same reduction in decay would accrue to older age groups provided the members of those groups had drunk the fluoridated water from birth. Appellants' evidence substantially supported the conclusions: that there is phenomenal agreement among professional and scientific groups in the United States and in the world that fluoridation of public water supplies in the amount provided by the ordinance in question is of great significance in terms of general health, in producing a dental caries resistant enamel on teeth; that ‘Dental decay is recognized as man's most wide-spread chronic disease. Few persons escape. No social stratum or age group is immune. A decayed tooth never heals by itself, by prescription or by advice. About 97,000,000 people in the United States have decayed teeth requiring treatment’; that fluoridation of water is safe, practicable, not unduly expensive as a health measure, and is efficacious. Appellants' evidence tended to show further that the harmful effects suggested by plaintiffs' evidence would not occur and the testimony of one of appellants' witnesses was that he practiced dentistry in Kirkwood (a municipality in St. Louis County) where the water supply had been fluoridated since January 1, 1958, and that he had observed no harmful effects; that dental fluorosis or mottling of the enamel on teeth occurs to an appreciable extent only when there is an excessive amount of fluoride in the water, that is, in excess of two parts fluoride per million gallons of water.
The evidence also established that fluoridation of public water supplies to the extent provided in the ordinance had been endorsed by the St. Louis Dental Association, the Missouri State Dental Association, the American Dental Association, the American College of Dentists, the Missouri Public Health Association, the American Public Health Association, the Missouri State Department of Health, the United States Department of Health, Education and Welfare, the St. Louis Medical Society, the Missouri State Medical Association, the American Medical Association, and the St. Louis County Health Department; that there are twenty-five communities in Missouri now fluoridating their water supplies to approximately one part per million; that at trial time there were 1,134,000 people in Missouri drinking artificially fluoridated water to the extent of one part per million gallons, and there were 109,000 people drinking naturally fluoridated water in various amounts; for example, in Columbia, Missouri, the natural fluoride content is 1.32 parts fluoride per million gallons of water; that Army, Navy, and Air Force installations where children are in residence furnish fluoridated water.
Appellants' evidence tended to show further that water fluoridated as the ordinance required is nonpoisonous; that toxicity will occur only at concentrations 20 to 50 times as great as that proposed by the ordinance; that while applying fluorine directly to the teeth is satisfactory for each individual who receives the treatment, it is not a practical method because there are not enough dentists to effectively accomplish the task; that dental decay occurs at a rate six per cent faster than available dentists can repair it; that fluoridation in the manner proposed is not mass medication but is, in effect, prevention rather than treatment; that chlorine is added to water to cut down bacterial contamination in order to reduce the occurrence of infectious disease, such as typhoid fever, and fluoride is added to prevent or deter the progress of a widespread dental disorder and thereby preserve the dental health of the people who consume the fluoridated water.
It is apparent from the foregoing résumé of the evidence that the question whether over-all harm or over-all benefit will result to individuals who consume water containing the fluoride ion in a concentration of one part fluoride to one million gallons of water is highly controversial and that there is substantial evidence to support a conclusion either way. Our province, in the first instance, is to determine whether the ordinance in question bears a reasonable relation to public health and is thereby fairly referable to the county's police power. It appears to us that decisive of that determination is the fact that the record contains substantial evidence from which the county council reasonably could have found and concluded that dental decay is a widespread and serious disease affecting the dental health of all the people of St. Louis County; that a requirement that the fluoride content of water consumed by St. Louis County residents be supplemented up to one part per million gallons would effectively and extensively decrease tooth decay, particularly in children, but with benefit to all; and that such a method would constitute a safe, practicable, relatively inexpensive, and efficacious public health measure.
We have no doubt, therefore, that the ordinance does bear a reasonable relation to public health and that its provisions are designed to and reasonably will tend to enhance the public health and, therefore, that the action of the St. Louis County Council, in enacting the ordinance in question, was an exercise of the power conferred by Section 192.300, supra.
We next consider whether the ordinance unduly invades or infringes rights guaranteed by the state and federal constitutions. Respondents contend that the ordinance is unconstitutional because it prohibits certain county residents from practicing their religious beliefs. That question is not before us for decision for the reasons which follow. There was no averment by plaintiffs in any pleading claiming any such violation, either directly or by inference. There was no averment that they or any of them are members or represent any members of a religious body or those who hold particular beliefs or practice their beliefs in a particular manner. Nor was there any such contention throughout the trial. There was no evidence offered or adduced pertaining to the tenets or practices of any particular religious body or group of people, nor was there evidence that members of any particular religious body resided in St. Louis County. There was no finding of fact or conclusion of law with respect to the contention now made and thus, of course, no part of the judgment was based upon any such finding or conclusion.
After the present appeal was pending in this court, leave was granted an attorney of the Missouri Bar to file a brief herein as amicus curiae, on the averred ground that the case was one which affected the interest and welfare of all the people of Missouri, including those residing in large metropolitan areas. The brief of amicus curiae contends, and that contention is specifically adopted by and included by reference as part of respondents' brief, that the ordinance in question is unconstitutional because it subjects Christian Scientists in St. Louis County to forced medication against their religious beliefs and thereby deprives them of their constitutional right under the First Amendment to the United States Constitution. It is suggested by inference that we may take judicial notice of the fact that it is a religious belief of Christian Scientists that no material applications for relief of disease should be employed. But if, in the public interest, we should wish to resolve the question posed in amicus' brief, even though the constitutional question was not raised below nor preserved for appellate review, and even if we should take judicial notice that the belief suggested by counsel is a religious belief of Christian Scientists, still we should not know whether, nor could we assume that, it would violate that belief for one to consume water which theretofore had contained one-half part fluoride, simply because another one-half part had been added. Furthermore, if we should assume that the fluoride ion in water constitutes medication as to the individual and if we should further assume that the ingestion of that medication violates a religious belief of any county resident, then it must follow that forced medication now exists and that the enforcement of the ordinance in question would not change the situation in that respect. Be that as it may, however, the fact is that we may not on this record decide whether anyone's religious beliefs or anyone's freedom to practice his religious beliefs would be unduly and unlawfully infringed by the enforcement of the ordinance.
Respondents and amicus curiae state their specific contention with respect to the claimed violation of the Fourteenth Amendment to the United States Constitution and of Section 10 of Article I of the Missouri Constitution in this manner: The ordinance is unconstitutional and void because it deprives plaintiffs and other residents of St. Louis County of their liberty in that it denies them freedom of choice in matters relating to bodily care and health by compelling them to drink water containing ‘the poisonous drug fluoride ion’ against their wills when not justified by ‘pressure of great dangers' to the public health.
Inasmuch as there is before us no question involving the violation of respondents' or others' freedom to believe and practice the tenets of their religious beliefs or involving the violation of any other First Amendment right, it is apparent that in so far as the federal constitution is concerned we are here dealing with the due process clause of the Fourteenth Amendment as applied ‘for its own sake’ and not with the due process clause as an instrument for transmitting any specific prohibition of the First Amendment. That is to say, we are not here dealing with a freedom which has been said to occupy a ‘preferred place ... in our scheme,’ i. e., those ‘freedoms secured by the First Amendment.’ West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 87 L.Ed. 1628; Thomas v. Collins, 323 U.S. 516, 529, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430.
Respondents point out that the ‘word ‘liberty’ contained in that amendment [Fourteenth] embraces not only the right of a person to be free from physical restraint, but the right to be free in the enjoyment of all his faculties as well.' (Bracketed insert ours.) Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 446, 80 L.Ed. 660. They concede that their freedom to choose whether to consume water containing the fluoride ion as a preventative to deter the decay of an individual's teeth is subject to regulation by law but contend that one's constitutionally protected freedom may be lawfully infringed only when such is necessary to insure the equal enjoyment of the same right or freedom by others or ‘under the pressures of great dangers.’ They rely upon language contained in the memorandum opinion of the trial chancellor who, in turn, stated those ‘tests' on the authority of Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643. In that case the court upheld the validity of a state compulsory vaccination law. It is true that the court at one place in its opinion quoted this from another case ( 197 U.S. 26, 27, 25 S.Ct. 361): “The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.” And at another place in the opinion ( 197 U.S. 29, 25 S.Ct. 362) the court, in pointing out that it was ‘the duty of the constituted authorities primarily to keep in view the welfare, comfort, and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few,’ pointed out further that to conserve the safety of members of society, ‘the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.’ But the court in the Jacobson case in the course of its opinion also said: ‘If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution. ...
‘Whatever may be thought of the expediency of this statute, it cannot be affirmed to be, beyond question, in palpable conflict with the Constitution.’ 197 U.S. 31, 25 S.Ct. 363.
In our view the Jacobson case does not support the proposition that individual freedom of choice pertaining to a matter affecting the public health, such as the freedom of choice here asserted, may be validly restricted or infringed only where the restraint imposed is necessary in order to insure equal enjoyment of the same freedom by others or under the ‘pressure of great dangers'; nor does that case stand for the proposition that only when necessary to protect the individual as well as the members of the general public from the danger of a communicable or contagious disease may a legislative body validly enact an ordinance interfering with the freedom of choice of the individual as to a matter affecting the public health.
The United States Supreme Court has made it clear that even in cases involving First Amendment prohibitions which occupy an exalted and preferred position in our scheme of things it will not indiscriminately apply the ‘clear and present danger’ test stated in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 249, 63 L.Ed. 470. That court adopted the interpretation of that phrase suggested by Chief Judge Learned Hand. In Dennis v. United States, 341 U.S. 494, 510, 71 S.Ct. 857, 868, 95 L.Ed. 1137, the court, speaking of the phrase ‘clear and present danger,’ said: ‘Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: ‘In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.' [United States v. Dennis, 2 Cir.] 183 F.2d at 212. We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.' And see Baer v. City of Bend, 206 Ore. 221, 292 P.2d 134, 139, 140, where the Oregon Supreme Court in a well-reasoned opinion held that the effect of the fluoridation of a public water supply did not infringe the consumer's constitutional guarantee of religious liberty.
It seems to us that the language of the court in West Coast Hotel Company v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, is apropos in determining whether the due process clause of the Fourteenth Amendment has been violated under the facts here. There the court, in dealing with the question whether there had been a deprivation of freedom to contract by the enactment of a minimum wage regulation for women, said at page 391: ‘What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.’ (Our italics.)
Missouri cases hold that Article I, Section 10 of our Constitution (‘That no person shall be deprived of life, liberty or property without due process of law’) is not violated by an ordinance which, as we have held the one in question to be, is fairly referable to the police power of the enacting body and which is shown to have been enacted for the protection and enhancement of the public health and general welfare of the inhabitants of the area in question, unless its provisions are unreasonable and the burden is upon the one asserting the ordinance's invalidity to overcome the legal presumption of validity which attends the ordinance. Passler v. Johnson, Mo., 304 S.W.2d 903, 908.
Respondents' evidence tended to show that the ingestion of any amount of fluoride ion is harmful, that consuming water which contains any amount of the fluoride ion constitutes medication, and that there is no difference between the fluoride ion existing in the Missouri River water as it is now distributed by the Water Company and the inorganic fluoride ion which would be placed in the water under the ordinance requirement. Thus it is clear that this freedom of choice which respondents assert is not the freedom to choose not to ingest any fluoride (they say, medication) because they are now consuming and apparently, irrespective of the ordinance, will continue to drink water containing one-half part fluoride to each million gallons. Thus, the freedom of which respondents speak can be only the freedom to choose not to ingest more fluoride (more medication) than they are now consuming by drinking water which contains an additional one-half part fluoride to each million gallons of water. It is true that respondents' evidence tended to show that the greater the amount of fluoride in the water the greater the harm to the individual consuming it, so admittedly, from respondents' standpoint, there is involved some ‘freedom of choice’ but it is of the nature indicated.
We are not concerned with the expediency of the ordinance or with the wisdom of the council's action in enacting it. We again recognize that we are bound by the council's reasonable determination that the measure will result in benefit to each individual consumer and not in harm. We have held herein that the ordinance does bear a reasonable relation to public health and, based upon the council's conclusions, does tend to enhance the health of the residents of the county. Consequently, it appears that for us to hold the ordinance in question is in ‘palpable conflict’ with the state or federal constitution we would need to find and rule that, although, as we have held, the ordinance bears a reasonable relation to public health and its enforcement would enhance, the public health, nevertheless, the type and extent of the benefit accruing to each individual (prevention of dental decay) are such that each individual must be completely free to determine for himself whether he will accept the asserted benefit bestowed through the fluoridation of the public water supply, else his freedom of choice is unreasonably infringed. We correctly may not so hold. On the contrary, it seems to us that the reasonably expectable and valuable benefit which the council determined would accrue to the community as a whole justifies the resulting infringement of the individual's freedom of choice. (We note, parenthetically, that we have assumed throughout that the enforcement of the ordinance would ‘compel’ respondents and other residents to consume the fluoride ion. That is because we recognize that there is a very real compulsion for many from a practical standpoint when the only apparent ways to avoid drinking public water and thus to avoid consuming the additional fluoride probably are, for many, prohibitively expensive or unduly burdensome. The fact remains, however, that in considering the matter of undue or unreasonable infringement; it is well to recognize that the ordinance does not specifically require any individual water consumer to do anything.)
We are supported in our conclusion as to the ordinance by the opinions from each of eight appellate courts which have considered the questions involved in the fluoridation of public water supplies. It is true that there are distinguishing features in those cases. In some were fact stipulations which eliminated certain questions. In one of them, the Iowa case, the sole question was the power of a city to enact such an ordinance. On the whole, however, the opinions in the following cases are authority for the conclusion we have reached: Baer v. City of Bend, supra; Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352; Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609; Dowell v. City of Tulsa, Okla., 273 P.2d 859, 43 A.L.R.2d 445; De Aryan v. Butler, Cal.App., 260 P.2d 98; Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242; Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142; Wilson v. City of Council Bluffs, Iowa, 110 N.W.2d 569.
Taking into account and consideration the relevant facts and circumstances as we see them, we are of the view that we may not confidently say that the enforcement of the ordinance in question would result in an undue or unreasonable infringement of respondents' protected freedom of choice under the due process clause of either the state or federal constitution.
Respondents contend also that the fact that their evidence indicated that there were other and, in their opinion, better ways to apply the fluoride ion to the teeth obviated the necessity for the fluoridation of the public water supply and thereby caused the ordinance to ‘broadly stifle fundamental personal liberties when the end can be more narrowly achieved.’ Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231. While, as we have pointed out heretofore, respondents did adduce evidence that fluorine could be applied to the teeth either topically or by dissolving tablets in individual water supplies, there was other evidence from which the council reasonably could have reached the conclusion that such methods would not effectively accomplish the purpose of the ordinance, that is, to benefit all by partially freeing each from the ravages of dental decay. It is suggested also that the ordinance benefits only a particular class, i. e., children up to 14 years, and it is contended that the ordinance is unconstitutional for that reason. While it is true the ordinance in question must be in the interest of the public generally as distinguished from the interest of a particular class, the evidence was such as justified the council in determining that the consumption of fluoridated water would benefit people of all ages. There was direct testimony to that effect and, of course, it is apparent that children become adults. Clearly, the council was justified in finding that the ordinance was in the interest of the county's entire population and not solely in the interest of a particular class.
Respondents contend further that the ordinance is in conflict with and violates Sections 196.125-196.145 RSMo 1959, and V.A.M.S. The cited sections define a nonalcoholic drink and then provide that such nonalcoholic drinks shall not be adulterated or misbranded and prescribe a penalty for any violation. Respondents contend that water is a nonalcoholic drink and, inasmuch as Section 196.135, supra, provides that a nonalcoholic drink is adulterated when it contains any fluorides or fluorine compounds, the sections in question would be violated by the enforcement of an ordinance requiring the addition of a fluoride to water. We are of the view that respondents' contention in that respect is untenable. Section 196.125, 12 V.A.M.S., defines a nonalcoholic drink in these words: ‘the term ‘nonalcoholic drink,’ as used herein, shall include carbonated beverages of all flavors, sarsaparilla, ginger ale, soda water of all flavors, lemonade, orangeade, root beer, grape juice, and all other nonintoxicating drinks.' It is clear enough to us that the legislature did not intend to include water within the expression ‘all other nonintoxicating drinks.’ Clearly we think the legislature intended by that language to include other drinks popularly referred to as ‘soft drinks' which were not specifically named but which were of the general kind and nature as those listed. We so hold. See Dowell v. City of Tulsa, supra, 273 P.2d 859, 864; Froncek v. Milwaukee, supra, 269 Wis. 276, 69 N.W.2d 243, 250, 251.
We are of the opinion that the ordinance in question is not invalid for any of the reasons urged, and it follows that the judgment is reversed and the case remanded with directions to enter a judgment in accordance with the views herein stated.
HOLMAN and HOUSER, CC., concur.
PER CURIAM.
The foregoing opinion by COLL, C., is adopted as the opinion of the court.
All concur.

HOLMAN, Judge.
Plaintiffs, as citizens, taxpayers, and electors of Kansas City, Missouri, filed this suit in an effort to obtain a writ of mandamus commanding defendant, City Clerk of Kansas City, to take certain action in regard to a referendum petition which had theretofore been filed with her. The trial court denied the relief sought. Upon appeal to the Kansas City Court of Appeals the judgment was reversed and cause remanded with directions to the trial court to issue its writ of mandamus as prayed. However, one of the judges dissented because he thought the opinion was in conflict with the decision of the St. Louis Court of Appeals in the case of Carson v. Oxenhandler, 334 S.W.2d 394, and upon his request, the cause was transferred to this court. State ex rel. Whittington v. Strahm, Mo.App., 366 S.W.2d 495. We will accordingly determine the case ‘the same as on original appeal.’ Article V, Section 10, Constitution of Missouri 1945, V.A.M.S.
The facts were stipulated and hence are not in dispute. On June 2, 1961, an ordinance was introduced into the City Council of Kansas City which, omitting formal parts, reads as follows:
‘Whereas, the medical profession has determined that fluoridation of public water supplies is an effective and salutary aid in the care of teeth and prevention of decay and diseases thereof, and
‘Whereas, the Council of Kansas City deems it in the interest of the health and welfare of the citizens of Kansas City that they be provided with fluoridation of the city's water supply,
‘Now, therefore, be it ordained by the Council of Kansas City:
‘Section 1. That the Director of the water Department be and he is hereby authorized to make the necessary plans and preparations for the fluoridation of Kansas City's public water supply. Such plans and preparations shall include proper and rigid control of the amount of fluorine to be used and take into consideration the natural concentration of Fluorine of the Missouri River water in Kansas City. The plans and preparations shall be in accordance with approved standards used in other major metropolitan areas.
‘Section 2. The Director of the Water Department is authorized to negotiate a contract for a total sum of not more than $65,000 for the initial installation and equipment charge necessary for the fluoridation of said water supply, said contract to be submitted to this Council for approval.
‘Section 3. The Director of the Water Department is directed to include in the future budgets the sum of $50,000 per year to cover the cost of fluoridation of the water supply.’
That ordinance was assigned to a committee of the council and the committee held three different hearings thereon in July 1961, at each of which a large number of persons appeared, some of whom favored the ordinance and others opposed it. That ordinance was never reported out of the committee and remained pending until January 12, 1962, when it was ‘lost on a semiannual docket clearance.’
On September 22, 1961, a resolution was introduced into, and on the same date passed, by the city council, which contained the identical provisions as those in the ordinance heretofore set out. On March 9, 1962, the city council passed Ordinance No. 27271 which approved a contract dated March 5, 1962, between Kansas City and S. R. Brunn Construction Company for the purchase of fluoridation facilities by the Director of the Water Department at a cost of $46,510, which ordinance was the first ordinance passed by the city council which made possible the addition of fluorides to the municipal water supply of said city.
Section 430 of the Kansas City Charter provides: ‘Any ordinance passed by the council, except emergency measures, shall be subject to referendum of the electors.’ The section further set out the procedure for seeking a referendum. Section 15 of the charter defines emergency measures as follows: ‘An emergency measure is any ordinance passed by the affirmative vote of six members of the council for the immediate preservation of the public peace, property, health, safety or morals, in which the emergency is set for [forth] and defined in a preamble thereto; any ordinance calling any election, or providing for the submission of any proposal to the people; any ordinance making an appropriation for the payment of principal or interest of the public debt, or for current expenses of the city government; any general appropriation ordinance; any ordinance relating to any public improvement to be paid for by special assessment.’
In compliance with the procedure specified in the charter there was filed with defendant, within the time provided, a referendum petition containing more than 18,000 names and addresses. Section 430 requires referendum petitions to contain signatures equal to 10% of the total vote cast for mayor at the preceding regular municipal election and it was stipulated that at the last election, which occurred in 1959, said total vote was 94,305; it was also stipulated that, upon the filing of said referendum petition, defendant refused to examine same and to certify as to its sufficienty and that she was instructed by the city council, by resolution, to take no further action on said referendum petition.
The agreed statement also specified that at the time in question Kansas City was adding eight different compounds to its water supply, all of which were for the purpose of purifying, softening, improving the taste of, and regulating the acid-alkaline balance of the water; that the purpose of purchasing the equipment, as provided in the ordinance under consideration, is to add fluorides to the water supply for the medicinal purposes of hardening the teeth and preventing dental caries; that Missouri River water, from which all water for the system is taken, contains a quantity of natural fluorides, but additional fluorides have never before been added by Kansas City to its municipal water supply; that the fluoridation facilities to be acquired are permanent facilities and the fluoridation provided for under the foregoing ordinance will affect the water supplied to all persons who subscribe for water from the Kansas City municipal water system.
It is the primary contention of plaintiffs, as disclosed by their pleadings and briefs, that the ordinance in question, not being an emergency measure, is referable under the charter provision. It is the position of defendant that under the provisions of the charter, only legislative ordinances are referable, and that Ordinance No. 27271 was an administrative and not a legislative ordinance and hence was not the proper subject of a referendum petition.
The opinion of the Kansas City Court of Appeals pointed out that the charter provided that all ordinances were referable, except those specifically described in Section 15 of the charter, and held that the framers of the charter intended that any ordinance (except those specifically exempted) was subject to referendum regardless of whether it might be classified as legislative or administrative.
The question has been briefed as to whether administrative ordinances are subject to referendum under the provisions of the Kansas City Charter. It is conceded that ordinances legislative in character (unless specifically exempted) are referable. We note in an annotation on the subject that ‘it is the general rule that initiative and referendum provisions are applicable only to acts which are legislative in character, and are not applicable to those dealing with administrative or executive matters.’ 122 A.L.R. 769. Reference has heretofore been made to the case of Carson v. Oxenhandler, in which it is said: ‘The rule that only acts legislative in their nature are subject to referendum is particularly applicable in the field of municipal corporations. The legislative body of a municipality, whether it be designated a city council, board of aldermen, or otherwise, is frequently called upon to act in an administrative as well as a legislative capacity by the passage of ordinances and resolutions. From an early date in the history of the right of referendum it has been recognized that to subject to referendum any ordinance adopted by a city council, whether administrative or legislative, could result in chaos and the bringing of the machinery of government to a halt. ...The general rule which had developed is stated in Seaton v. Lackey, 298 Ky. 188, 182 S.W.2d 336, 338, as follows: ‘Although initiative and referendum provisions widely differ in their terminology, it is the general rule that they are applicable only to acts which are legislative in character, and not to those dealing with administrative or executive matters. ... .’' 334 S.W.2d 339.
In Carson, the St. Louis Court of Appeals held that the provision of the St. Louis County Charter providing for referendum of ‘any ordinance’ should be construed as intending that only ordinances of a legislative nature should be the subject of referendum. The court then decided that the ordinance under consideration was legislative in character and thus subject to referendum. The portion of the opinion in Carson which construes the charter provision in regard to the question of its application to ordinances legislative or administrative is a most learned and informative discussion and no doubt is of great assistance to anyone interested in the subject. However, we regard it as dictum for the reason that the opinion held the ordinance under consideration to be legislative in character which, without question, was subject to referendum.
In the case before us we do not consider it necessary or proper to construe the charter provision and determine whether administrative ordinances are subject to referendum thereunder. This for the reason that we have decided that the ordinance in question is legislative in nature, and it is conceded that an ordinance of that character is subject to referendum. Therefore, any construction of the charter provision would be dictum.
‘In reference to what constitutes legislative and what administrative action in connection with restriction of the power of initiative or referendum to legislative matters it has been said that action relating to subjects of permanent and general character are usually regarded as legislative, and those providing for subjects of temporary and special character are regarded as administrative....The test of what is a legislative and what an administrative proposition... has further been said to be whether the proposition is one to make new law or to execute law already in existence. Again, it has been said: ‘The power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.’'. 5 McQuillan, Municipal Corporations, 3rd Ed., § 16.55, pp. 254-256.
No case has been cited (and we have found none) which involves the same situation as the one before us. Missouri cases on the subject are Carson, supra, in which an ordinance authorizing the county to enter into a cooperation agreement with its Housing Authority was held legislative, and State ex rel. Wilkinson v. Edwards, 305 Mo. 431, 266 S.W. 127, wherein an ordinance authorizing the city counsellor to institute condemnation action to a acquire a bridge approach was also held to be legislative.
We readily agree that the ordinance before us has the appearance, upon casual examination, of an administrative one. If, instead of fluoridation equipment, it had approved a contract for the purchase of a pump for routine use by the water department, we would unquestionably hold it to be administrative because, as a usual rule, ordinances providing for the purchase of equipment are administrative. However, we must not restrict ourselves to a casual examination of the ordinance but must look to its substance and determine the real purpose thereof and that which it will accomplish.
If the first ordinance introduced had been passed we do not see how anyone could reasonably have contended that it would not have been legislative in character. This because it provided a new declaration of public policy for the permanent practice of fluoridation of the water furnished residents of the city and made provisions for the means of putting that policy into effect. If we are correct in the foregoing conclusion, that ordinance would have been subject to referendum. However, it was apparently abandoned in committee and instead a resolution containing the same provisions was introduced and adopted. We do not think that resolution had any lawful effect. In matters of that nature the council can only act by ordinance. See Charter Sections 1(61) and 2. It is significant that the defendant does not contend that it had any legal efficacy. And the resolution was not subject to referendum. Charter Section 430.
Shortly thereafter the ordinance in question was adopted. It is stipulated that it ‘was the first ordinance passed by the City Council of Kansas City, Missouri, which made possible the addition of fluorides to the municipal water supply of said city.’ As stated, it appeared to be a routine ordinance for the purchase of equipment but, actually, it would accomplish much more. That ordinance legally inaugurated for the first time the practice of fluoridating the Kansas City water supply. It did so as effectively as could have been done if the first ordinance, so providing, had been enacted. We take judicial notice of the fact that the question of fluoridating the water supply has been a highly controversial one. If we should overlook the real substance of this ordinance and hold it to be administrative, the voters (assuming, but not deciding, that an administrative ordinance is not referable) would be denied the right to refer it simply because of the type of ordinance finally adopted. The maneuver within the council of abandoning the first ordinance and thereafter adopting the resolution and purchase ordinance may or may not have been conceived in order to preclude the right of referendum in regard to this matter, but, regardless of the intent, the result would have been the same.
Defendant makes the contention that the ordinance under consideration is administrative rather than legislative because it is in accord with the long-established policy of Kansas City of adding medicinal compounds to the water supply in the interest of the public health. It is said that (1) chlorine is added for the ‘medicinal purpose to attack biologicals in the water’; and (2) aluminum sulphate and ferric sulphate are added for the ‘medicinal purposes to coagulate macroscopic matter in suspension in the water.’ We think the addition of fluorides goes beyond the policy established by the addition of the chemicals herefore specified. Those now being added are used for the purpose of their effect upon the water, i. e., making it pure and palatable, while the sole purpose of adding fluorides is for the therapeutic effect it will have upon the person drinking the water. This contention is ruled against defendant.
For the reasons heretofore stated, we have concluded that Ordinance No. 27271 is legislative in character and effect and is therefore subject to referendum.
The judgment is reversed and cause remanded with directions to the trial court to issue a peremptory writ of mandamus as prayed for in the petition.
All concur.

The plaintiffs instituted this civil action on November 22, 1963, for temporary and permanent orders restraining the defendants from enforcing an ordinance passed by the Asheville City Council directing the city manager to place fluorides in the water supply of the corporate defendant. The verified complaint upon which the plaintiffs base their demand for the orders alleges as the reasons therefor both the excessive costs and the harmful effects of fluoridation.
The defendants filed a demurrer upon the ground the complaint fails to state a cause of action. The parties stipulated that in February, 1956, the Buncombe County Board of Health passed a resolution requesting the City Council to institute such orders as ‘may be required to fluoridate our public water supply’ and in order for the Council to have the benefit of an advisory vote, the Board of Commissioners of the County was requested to and did call a county-wide election on the question whether the City should introduce fluorides into the public drinking water supply. The vote was 2,479 for and 8,465 against fluoridation. ‘No further action was taken by the council and the public water supply was not fluoridated.'
The parties stipulated:
‘7. That the question of the feasibility of placing flourides in a public water supply is highly controversial, many communities having allowed it, many communities having disallowed it, and many communities having taken same out of their water supply after having installed it, and representatives of the proponents and opponents having appeared formally before the City Council at various times over the last several years, both before and after the vote of 1956.
‘8. That the sole purpose of fluoridation of the city water supply is to reduce the dental caries (dental decay) in teeth of individuals from birth to the age of approximately fifteen years, together with any residual benefit to those persons throughout their life by consumption of fluoridated water. Dental caries, or tooth decay, is a prevalent and common disease or condition of residents generally in Asheville and Buncombe County.
‘9. It is contemplated that the fluoridation measures undertaken by the Asheville City Council, if carried out, would be under the control and governed by the procedure determined by the North Carolina State Board of Health as in such matters provided.'
In August, 1963, the County Health Officer, the Buncombe County Dental and Medical Associations recommended the immediate fluoridation of the city's water supply. The Council, on September 12, 1963, by a 4 to 3 vote, adopted a resolution directing the city manager to fluoridate the water supply. The plaintiffs instituted this action and obtained a temporary order from Judge McLean restraining the defendants pending a hearing. At the hearing on March 4, 1964, Judge Fronberger overruled the demurrer and continued the restraining order to the final hearing. The defendants appealed.
HIGGINS, Justice.
According to the stipulations of the parties and the findings of the court, the advantages and disadvantages of fluoridating the city water supply are controversial. The question, therefore, becomes one of policy for the decision of the City Council rather than one of law for the courts. DeAryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703; G.S. §§ 160-229 and 160-225; State ex rel. Whittington v. Strahm, 374 S.W.2d 127 (Mo.). ‘It is only where the ordinance is so unreasonable, oppressive and subversive of individual and property rights that it carries the inference of an attempted abuse rather than a legitimate exercise of power that the courts will interfere.’ 6 McQuillin, Municipal Corporations, § 20.04, p. 9 (3rd Ed. 1949).
The plaintiffs contend the adverse vote in the county-wide election of 1956, although advisory, nevertheless should prevent the council from passing the resolution until the electors are given another opportunity to vote on the question. While the city charter was not introduced in evidence, yet the parties in their briefs and in the oral argument concede that it provides for a referendum election upon proper petition before any ordinance becomes effective; and in the event a majority vote for the repeal, the ordinance shall be recalled.
The board allegations in the complaint are narrowed by the stipulations of the parties. In the absence of any charge of bad faith on the part of the city council or on the part of the health officer and the dental and medical associations at whose instance the council ordered fluoridation, we hold the complaint fails to allege a cause of action. At the same time we realize that difficulty and expense are involved in the changeover to fluoridation, and that upon petition for a referendum the resolution to fluoridate may be called. This being an equity proceeding, we remand the cause to the Superior Court of Buncombe County to be dismissed-but only after the opponents have had time to call for and obtain a referendum as provided in the City Charter.
The recall election must be determined by the voters of the city. Those outside, notwithstanding their dependence on the city for their water supply, may not participate in any election to recall an ordinance of the City Council. After the opponents of fluoridation have had a reasonable time to petition for a referendum the Superior Court will dismiss this cause at the cost of the plaintiffs. This delay seems proper inasmuch as the Charter provides the petition may be filed ‘after the passage of any ordinance...and before it goes into effect.’ (emphasis added)
Reversed and remanded with instructions to dismiss within a reasonable time after the mandate of this Court.

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Balke v. City of Manchester

New Hampshire, Improper Procedure, Petitions Initiatives & Re-votes

Plaintiff

June Balke

Defendant

City of Manchester

State

New Hampshire

Other Parties

-

Case Tags

- Improper Procedure

- Petitions Initiatives & Re-votes

Citation

150 N.H. 69; 834 A.2d 306 (N.H. 2003)

Year

2003-00-00T00:00:00

Court Name

Supreme Court of New Hampshire

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Nadeau J

Opinion Text

NADEAU, J.
The defendant, City of Manchester (city), appeals a decision by the Trial Court (Lynn, J.) that interprets RSA 485:14 (2001) to require approval by the voters of each municipality in which residents use water provided by the Manchester Water Works (MWW) before MWW can provide fluoridated water to any residents of the community. We affirm.
The plaintiffs, residents of Manchester and five surrounding municipalities, filed a petition for declaratory judgment, injunctive relief and damages in the superior court, arguing that the city had violated RSA 485:14 by fluoridating its water supply prior to conducting public hearings and obtaining voter approval in other municipalities which MWW served. The plaintiffs' request for a preliminary injunction to stop the fluoridation of the water supply was denied. Both parties moved for summary judgment on the statutory violation claim, and each objected to the other's motion. The trial court granted the plaintiffs' motion for summary judgment, ruling that the city had violated RSA 485:14, and ordered the city to cease fluoridation by April 2004 unless a legislative remedy was enacted or the surrounding towns voted to approve the fluoridation. The city filed a timely motion for reconsideration, which was denied. This appeal followed.
The trial court found the following facts. The MWW was established by a special act of the legislature in 1871 and has operated as a department of the city since that time. In addition to providing water service to residents and businesses in the city, MWW extended its water distribution system to include areas outside the city limits of Manchester sometime in the 1920s. At the present time, MWW has direct retail customers (i.e., residential or business properties that are connected to the MWW pipeline system) in the towns of Auburn, Bedford, Goffstown, Hooksett and Londonderry. MWW also has entered into wholesale water contracts with the Town of Derry, the Grasmere Water Precinct, the Central Hooksett Water Precinct and Pennichuck/Consumers New Hampshire Water Company. These wholesale customers in turn provide water service to retail customers in Bedford, Derry, Goffstown, Hooksett and Londonderry.
Because an MWW “customer,” whether wholesale or retail, simply means a “connection” to its pipeline system, there is no easy way to correlate the number of customers with the actual number of consumers of MWW water. A “connection” may vary from a single family home to a duplex, a large apartment complex, or a commercial establishment. Despite this difficulty in correlating connections with consumers, the parties appear to have agreed at trial that MWW provides water service to over 99% of the residents of the city. The parties also agreed that the “connections” outside the city limits of Manchester account for between 20% and 30% of MWW's total connections.
The parties disagreed as to the percentage of the population served by MWW in each of the satellite towns. Based upon demographic information and information supplied by the New Hampshire Department of Environmental Services (DES), the city estimated that these percentages range from a low of 4.7% for Auburn to a high of 44.1% for Derry. The plaintiffs, on the other hand, proffered an analysis prepared by an architect they retained as an expert, who opined that the percentages range from 8% for Auburn to 57% for Hooksett.
Following a public hearing conducted by the city pursuant to RSA 485:14, a question was placed on Manchester's 1999 municipal election ballot asking the voters to decide whether the city's public water supply should be fluoridated. By a margin of 11,594 to 10,938, the vote was in favor of adding fluoride to the water supply. No similar public hearings or referendums were held in any of the other towns that are serviced by MWW, although MWW did notify officials of these towns of its plans to fluoridate the water. The city began adding hydrofluorisilic acid (HFS) to the water supply on December 19, 2000. In June 2000, the city obtained approval of its fluoridation plan, including the use of HFS, from DES pursuant to RSA 485:8 (2001).
The sole question on review is one of statutory interpretation. The city argues that the trial court's interpretation of RSA 485:14 is inconsistent with the rules of statutory construction and the historical treatment of water companies in this State. In particular, the city argues that (a) the trial court failed to construe the plain language of RSA 485:14 and the referendum statutes incorporated therein as a whole, (b) the trial court's interpretation of RSA 485:14 conflicts with the statutory scheme and other legal principles, and (c) the trial court's interpretation of RSA 485:14 leads to absurd and unjust results.
This court is the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole. See In the Matter of Breault & Breault, 149 N.H. 359, 361, 821 A.2d 1118 (2003). We first examine the language of the statute, and, where possible, ascribe the plain and ordinary meanings to the words used. Id. When a statute's language is plain and unambiguous, we need not look beyond it for further indication of legislative intent, and we refuse to consider what the legislature might have said or add language that the legislature did not see fit to incorporate in the statute. Id. Furthermore, we interpret statutes in the context of the overall statutory scheme and not in isolation. Id.
RSA 485:14 provides:
No fluorine shall be introduced into the water of any lake, pond, reservoir or stream tributary from which the domestic water supply is taken unless and until the municipality using said waters has held a public hearing as to the introduction of fluorine into the public water supply of said municipality, and the voters of such municipality have approved such action pursuant to RSA 44:16 or 52:23.
We first address the argument that the plain language of RSA 485:14, read together with the referendum statutes incorporated therein, requires only that there be a referendum in the municipality that runs the water system. The city argues that the language requiring a referendum by the “municipality using said waters” is ambiguous, and contrasts that wording with other possible formulations that would have been clearer, such as “a municipality within which said waters are used.” We agree, however, with the trial court's interpretation of “municipality using said waters.” It would be illogical to read the statute to require a referendum vote only when a municipality as a municipality, rather than its residents, uses fluoridated water from MWW. We believe it obvious that the statute is concerned with the use of fluoridated water by individuals, not by municipalities as corporate entities. Reading the language in context, the use of the word “municipality” is to designate the municipality as the entity that would hold a referendum for approval of fluoridation of the public water supply: “No fluorine shall be introduced into the water ... until the municipality ... has held a public hearing ... and the voters of such municipality have approved such action.” RSA 485:14.
The city argues that “ ‘[p]ublic water system’ is a term of art under the current statutory scheme,” a term used in the referendum before the voters under RSA 44:16: “Shall permission be granted to introduce fluorides into the public water system?” The trial court's interpretation, the city argues, means that MWW is the public water system of every municipality to which MWW provides water, and this contradicts RSA 38:24. We note, however, that RSA 485:14 does not use the term “public water system,” but rather the terms “public water supply” and “domestic water supply.” See RSA 485:14. As the other statutes within the statutory scheme make clear, the legislature knows how to use the term “public water system,” and we will not add words that the legislature has chosen not to include. See Breault, 149 N.H. at 361, 821 A.2d 1118. Furthermore, the use of the word “domestic” synonymously with the word “public” when referring to the water supply in RSA 485:14 strengthens our conclusion that the legislature intended to regulate waters used by private individuals within a municipality, not merely the use of water by a municipality as a public, governmental body.
The city and the State argue that the plain language of the statute requires a referendum vote only by the municipality that owns and operates the water system, not every municipality in which a resident receives water from the water system. We disagree. The statute requires a public hearing in each “municipality using said waters,” not merely the municipality that introduced the fluorine into the water. RSA 485:14. Any municipality that has residents using water from MWW is a “municipality using said waters” within the meaning of RSA 485:14. Therefore, we agree with the trial court that “before a public water supply which is used within a municipality may be fluoridated[,] there must be a hearing and referendum in that municipality.”
The city argues that the trial court's interpretation of RSA 485:14 leads to absurd and unjust results. Among other things, the city notes that a vote against fluoridation in one small municipality could prevent fluoridation of an entire water system, even if the other municipalities approved it, and that the failure to satisfy the prerequisites to referendum in any municipality would defeat fluoridation for all municipalities using the water system. Although those concerns are valid, these difficulties are the natural result of the statutory language adopted by the legislature. While the city's interpretation might avoid these concerns, it would cause other, equally troubling difficulties. For example, if only the municipality owning the water system were required to approve fluoridation, one small municipality owning a water system could hold a referendum on fluoridation among its voters, and then provide fluoridated water to numerous large municipalities without the residents of the large municipalities having a vote.
Finally, the State argues that regulations and the overall statutory scheme place responsibility for the operation of the water system upon the municipality that operates the system, and “placing responsibility for the operation of the water system upon the municipality which operates the system is critical to the success of the statutory scheme.” Thus, the State argues, only the municipality that runs the water system should be required to approve fluoridation by referendum. As difficult as it may be for the city to comply with the statute as currently written, we are constrained by the clear and plain language of RSA 485:14. We will not rewrite the statute; that is the province of the legislature. The trial court's order, decided in June of 2002, did not require the city to “cease and desist from fluoridating the water supplied, directly or indirectly, to any properties located in the towns of Auburn, Bedford, Goffstown, Hooksett or Londonderry” until April 1, 2004, thereby allowing the legislature time to consider whether to amend RSA 485:14. We agree with this approach, and therefore affirm the order of the trial court, but extend the time for compliance to June 30, 2005.
Finally, having reviewed the record regarding the city's remaining arguments, we conclude that they either have been waived or are without merit and warrant no further discussion. See Vogel v. Vogel, 137 N.H. 321, 322, 627 A.2d 595 (1993).
Affirmed.
BROCK, C.J., and DALIANIS and DUGGAN, JJ., concurred.

MOUNTAIN, J.
This case questions the validity of the proposed fluoridation of a public water supply, an issue which has apparently not hitherto come directly before the courts of this state.
Between May and September, 1970, the Boards of Health of the Boroughs of Raritan and Somerville and of the Townships of Branchburg and Bridgewater, all in Somerset County, adopted resolutions requesting their common supplier of drinking water, Somerville Water Company, henceforth to supply water containing one part fluoride to each one million parts of water (1 p.p.m.). Plaintiffs, all of whom are taxpayers and residents of one or other of the affected municipalities, instituted this suit seeking injunctive relief against the proposed action and an adjudication that the resolutions were invalid. Upon the return day of the order to show cause why a preliminary injunction should not issue, plaintiffs moved for summary judgment. The motion was denied. By stipulation of counsel, and with the consent of the trial judge, it was agreed that the court's decision would be given the effect of a summary judgment in defendants' favor.
Plaintiffs appealed to the Appellate Division and this Court certified the case upon its own motion. R. 2:12-1.
Studies and experiments made over the past quarter century have established with considerable scientific certainty that in communities where public drinking water contains controlled amounts of fluoride, the incidence of dental caries (tooth decay) is dramatically less than in communities where the drinking water lacks this ingredient. Apparently fluoride in drinking water tends to harden tooth enamel, making teeth more resistant to decay. This beneficial effect is far more noticeable in children than in adults. With the addition, in 1967, of New York City's eight million residents, the number of persons drinking fluoridated water in the United States reached a total of sixty-five million. Clark & Sophy, Fluoridation: The Courts and the Opposition, 13 Wayne L.Rev. 338 (1967).FN1
FN1. The same article lists over fifty wellknown national organizations that have adopted policies favorable to fluoridation. These include American Cancer Society, American Nurses Association, American Hospital Association, United States Department of Defense, American College of Dentists, American Pharmaceutical Association, American Dental Association, American Medical Association, American Public Health Association, United States Department of Health, Education and Welfare, Food and Drug Administration and the Public Health Service. Clark & Sophy, supra, at 342.
Although no harmful results from fluoridation have been clearly proven and it has no effect upon the color, taste or odor of water and despite the health benefits that are clearly derived, proposals to fluoridate drinking water have encountered extraordinary opposition and antagonism. The generative forces of this hostility are not easily identified but have found expression in a variety of arguments. It is contended, variously, that there is a lack of statutory authority for the municipal action; that even if adequate statutory authority can be inferred, fluoridation is an abusive exercise of police power and as such is constitutionally offensive; that it prohibits the free exercise of religion by imposing medication upon those who would resist it; and that it otherwise constitutes a deprivation of personal liberties. The courts throughout the nation have been virtually unanimous in resisting these as well as other arguments, and in upholding fluoridation of drinking water as a valid public health measure whenever a challenge has been presented. De Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98 (1953), cert. den. 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135 (1954); Opinion of the Justices, 243 A.2d 716 (Del.1968); City Commission of City of Fort Pierce v. State ex rel. Alterhoff, 143 So.2d 879 (Fla.App.1962), app. dis. 154 So.2d 208 (1963); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1964), cert. den. 379 U.S. 964, 85 S.Ct. 655, 13 L.Ed.2d 558 (1965); Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W.2d 569 (1961); Graybeal v. McNevin, 439 S.W.2d 323 (Ky.1969); Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142 (1954), app. dis. 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701 (1954); Attaya v. Town of Gonzales, 192 So.2d 188 (La.App.1966); Rogowski v. City of Detroit, 374 Mich. 408, 132 N.W.2d 16 (1965); Readey v. St. Louis County Water Co., 352 S.W.2d 622 (Mo.1961), app. dis. and cert. den. 371 U.S. 8, 83 S.Ct. 20, 9 L.Ed.2d 47 (1962), reh. den. 371 U.S. 906, 83 S.Ct. 203, 9 L.Ed.2d 167 (1962); Paduano v. City of New York, 17 N.Y.2d 875, 271 N.Y.S.2d 305, 218 N.E.2d 339 (1966), cert. den. 385 U.S. 1026, 87 S.Ct. 754, 17 L.Ed.2d 674 (1967); Stroupe v. Eller, 262 N.C. 573, 138 S.E.2d 240 (1964); Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609 (1955), app. dis. 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463 (1956); Dowell v. City of Tulsa, 273 P.2d 859 (Okla.1954), cert. den. 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715 (1955); Baer v. City of Bend, 206 Or. 221, 292 P.2d 134 (1956); Hall v. Bates, 247 S.C. 511, 148 S.E.2d 345 (1966); Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352 (1954); Birnel v. City of Fircrest, 53 Wash.2d 830, 335 P.2d 819 (1959), app. dis. 361 U.S. 10, 80 S.Ct. 71, 4 L.Ed.2d 51 (1959), reh. den. 361 U.S. 904, 80 S.Ct. 204, 4 L.Ed.2d 159 (1959); Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242 (1955). The unanimity of appellate state court holdings is matched only by the frequency and persistent regularity with which the United States Supreme Court has declined review.
In the case before us it is initially urged that the local boards of health lacked authority to adopt the resolutions requesting fluoridation. We cannot agree.
The Legislature allocated to the State Department of Health the responsibility of formulating ‘comprehensive policies for the promotion of public health and the prevention of disease within the State.’ N.J.S.A. 26:1A-37. Specifically this statute directed the Department to ‘encourage, direct and aid in co-ordinating local programs concerning control of preventable diseases in accordance with a unified State-wide plan . . .,’ to ‘administer or supervise a program of . . . child health services, encourage and aid in co-ordinating local programs concerning . . . infant hygiene’ and ‘administer or supervise a program of dental health, (and) encourage and aid in co-ordinating local programs concerning dental health.’ Additionally the State Commissioner of Health was specifically authorized to do the following:
i. Cause studies to be made to determine whether the recognized public health activities of local health departments are being conducted and whether minimum standards of performance are being met in all municipalities of the State and for the purposes of this subsection, the commissioner shall recommend and the Public Health Council shall prescribe what are to be considered as ‘recognized public health activities' and ‘minimum standards of performance’;
j. Require local boards of health to establish and maintain a program of recognized public health activities and to meet minimum standards of performance as prescribed by the Public Health Council in accordance with the provisions of subsection ‘i’ of this section. (N.J.S.A. 24:1A-15)
We pause to emphasize the hierarchical effect of this statute. Within the rather wide area of its application it clearly places state authorities above local authorities. To the extent that recognized public health activities are defined and minimum standards for their performance established at the state level, these decisions are binding on local boards of health.
Pursuant to this statute, the Public Health Council of the New Jersey State Department of Health prescribed certain Recognized Public Health Activities and Minimum Standards of Performance for Local Health Departments in New Jersey, to take effect April 1, 1961. These included, under the heading, Dental Health, the following:
50.2 Promote controlled adjustment of fluoride content of public water supplies to the optimum protective level of 1 p.p.m.
In 1970 all of the functions, powers and duties theretofore exercised by the Department of Health and by the Commissioner of Health, having to do, Inter alia, with waters of this State and with potable water supplies were transferred to The Division of Environmental Quality and the Commissioner of the Department of Environmental Protection. N.J.S.A. 13:1D-7. The same enactment also provided that this transfer should not affect orders, rules or regulations theretofore adopted by the predecessor agency. N.J.S.A. 13:1D-15. Thus the quoted directive persists as an ongoing regulation of the Department of Environmental Protection.
Effective October 1, 1967, the Department of Conservation and Economic Development, which at the time shared certain responsibilities with respect to water policy and supply, N.J.S.A. 13:1B-47 et seq., included in its promulgated Potable Water Standards, a statement that fluoride should be present in water intended for potable purposes in recommended concentration of not more than 1.5 p.p.m. and not less than 1 p.p.m. The Department of Conservation and Economic Development was, in 1970, reorganized to become the Department of Environmental Protection, N.J.S.A. 13:1D-1, and the same legislation mentioned above, N.J.S.A. 13:1D-15, gave to these Standards continuing vitality.
It therefore seems abundantly clear that the local boards of health, in requesting the private utility that supplies drinking water to their municipalities to fluoridate at a concentration of 1 p.p.m., were merely implementing a policy that had been clearly announced by the arm of state government charged with overall responsibility in this area of public health.
Where, as here, a policy decision in the field of public health has been taken at the state level, the proper function of local boards of health is undoubtedly to implement and carry out such decisions. We are therefore not faced with the question as to whether, absent any authoritative announcement of policy at the higher level, a local board of health could, on its own initiative, undertake to fluoridate the municipal supply of drinking water. We are mindful, however, of the broad grant of power to enact and amend health ordinances contained in N.J.S.A. 26:3-64, and as this court observed upon an earlier occasion,
Local boards of health are governmental agencies created in every municipality under statutory mandate, N.J.S.A. 26:3-1, et seq., for the purpose of exercising locally the inherent police powers of the State respecting matters of public health. ( Bd. of Health of Tp. of Scotch Plains v. Pinto, 57 N.J. 212, 214, 271 A.2d 289, 290 (1970))
Although we need not decide the point, there would appear to be no impediment to appropriate local action, absent any mandate at the state level.
Finally, it is argued that the defendant boards of health were bound to act by ordinance rather than by resolution. We see no merit to this contention. Viewing the local action as responsive to the policy pronouncement of the State, it was no more than a request and certainly not legislative in nature. Where a general rule or declaration of policy has already been made, its particular implementation by a board of health will normally take the form of a resolution. Courter v. Board of Health of City of Newark, 54 N.J.L. 325, 23 A. 949 (Sup.Ct.1892). The several resolutions did no more than request the water utility to go forward with a program that had already been approved, if not indeed directed, by higher authority. Clearly no ordinance was needed.
The judgment of the trial court is affirmed.
For affirmance: Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, SCHETTINO and MOUNTAIN-6.
For reversal: None.

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Turner v. Barnhardt

New Mexico, Petitions Initiatives & Re-votes

Plaintiff

Harold L. Turner

Defendant

Charles E. Barnhart

State

New Mexico

Other Parties

New Mexico Citizens for Fluoridation

Case Tags

- Petitions Initiatives & Re-votes

Citation

83 N.M. 759; 497 P.2d 970 (N.M. 1972)

Year

1972-00-00T00:00:00

Court Name

Supreme Court of New Mexico

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

McManus

Opinion Text

McMANUS, Justice.
This action was brought in the Bernalillo County District Court and involved a complaint asking for declaratory judgment and for an injunction enjoining the City of Albuquerque from proceeding to place fluoride in the water supply. The court granted summary judgment for the defendants, denying any relief to the plaintiffs who perfected this appeal.
An ordinance of the City of Albuquerque, New Mexico, was adopted by the voters of that City on the 3rd day of November 1970. The question on which the voters cast their opinions read as follows:
‘Shall the proposed ordinance requiring fluoridation of the City water supply be adopted?’
Below the question were levers labeled ‘For’ and ‘Against’ for the choice of the voters.
The first point appellants raise is that the court should not have granted summary judgment in favor of the defendant since the issues involved were genuine and material issues of fact. In open court, at the trial, we relate the following questions and answers:
‘MR. O'BRIEN: May I make a suggestion?
‘THE COURT: Now, if you can tell me, if you now take the position that people who voted in this case had no right to vote or people who did not vote and had a right to vote will change the result of the election, maybe we can go into it, but I understand your position-
‘MR. O'BRIEN: I can't make any such claim.
‘THE COURT: You don't take that position?
‘MR. O'BRIEN: No, your Honor, I can't. It could be so but I can't prove it.
‘THE COURT: Now, I still don't know what questions of fact you want to take any depositions on.
‘MR. O'BRIEN: The suggestion I was going to make to you, what I would like to do, is when I'm drawing this brief on the law to study it out and if I have not objection to points of fact, I'll say so right in my brief.
‘THE COURT: Now, I know you have a lot of objections to questions of law, but they're questions of law and you can answer that in your brief, period, and that's it.
‘MR. O'BRIEN: Let me put it this way. When we come in on the brief and discuss that at that time-
‘THE COURT: Now, I don't know that I'm going to need any further hearing after I get your brief. If I want another hearing, I will let you know; otherwise, I won't.
‘MR. O'BRIEN: The suggestion I was going to make is this, if at that time I'll find a question of fact I'll call it to the attention of the Court.
‘THE COURT: Right. Now, you don't know:
‘MR. O'BRIEN: Yes. Correct.’
The hearing terminated forthwith and no logical or legitimate questions of fact were presented to the court. Questions of fact were alleged for the first time on appeal by the appellants without benefit of presentation to the trial court. Inasmuch as the original attorney, Mr. O'Brien, passed away during the proceedings, there was an adequate period of time during which the plaintiffs could have Rule 20(1), Supreme Court Rules, s 21-2-1(20), issues. Appellants complain that the facsimile signature of the Albuquerque City Clerk was fatal to the cause of the City of Albuquerque. This issue was never raised in the court below and cannot now be raised here for the first time. See Rule i0(1), Supreme Court Rules, s 21-2-1(20), N.M.S.A.1953 Comp. (Repl. Vol. 3, 1968). There has been no showing by appellants that there were further fact questions subject to the decision of the trial Court. See Spears v. Canon de Carnue Land Grant, 80 N.M. 766, 461 P.2d 415 (1969). Therein it was stated:
‘Mere argument or contention of existence of material issue of fact, as in the instant case, does not make it so. Wisehart v. Mountain States Telephone and Telegraph Co., 80 N.M. 251, 453 P.2d 771 (Ct.App.1969). The party opposing a motion for summary judgment cannot defeat the motion and require a trial by the bare contention that an issue of fact exists, but must show that evidence is available which would justify a trial of the issue. Aktiengesellschaft, Etc. v. Lawrence Walker Cotton Co., 60 N.M. 154, 288 P.2d 691 (1955); see Felt (for Use of United States) v. Ronson Art Metal Works, 107 F.Supp. 84 (D.C.Minn.1952); 3 Barron and Holtzoff, Federal Practice and Procedure, s 1235 at 141. Appellant failed in this important aspect.’
Appellants' Point II concerning the holding of a general election at the same time as a municipal election will not be considered because this point was not included in the praecipe as one of the points that the appellant intended to rely on for appeal. Rule 12(1), Supreme Court Rules (s 21-2-1(12)(1), N.M.S.A.1953 (Repl. Vol. 4, 1968)), reads as follows:
‘If the appellant or plaintiff in error does not specify or designate for inclusion in the transcript the complete record and all the proceedings and evidence in the cause, he shall include in his praecipe a concise statement of the points on which he intends to rely,... .
‘...
‘The review shall be limited to the points as stated, and such statement of points may be amended only in furtherance of justice and on terms and on special leave of the district court before the filing of the transcript and of the Supreme Court thereafter.’ (Emphasis supplied.)
See, also, City of Hobbs v. Chesport, Ltd., 76 N.M. 609, 417 P.2d 210 (1966); Robinson v. Black, 73 N.M. 116, 385 P.2d 971 (1963).
In their Point III, appellants claim error in that the full text of the ordinance was not placed on the ballot. In that regard, there are some points we will have to make clear. The major one is the language from s 14-13-18(B), N.M.S.A.1953 (Repl. Vol. 3, 1968), which the appellants quote in their brief. This statute refers to initiative measures which are measures promulgated by the people with amendment by the commission and voted on by the people. This election involved a referendum measure which is an ordinance passed by the commission and voted on by the people. The controlling statutory section is s 14-13-17(B), N.M.S.A.1953 (Repl. Vol. 3, 1968), which states:
‘The ballot shall contain the text of the ordinance or resolution in question.’
The appellants argue that text means the entire ordinance and failure to print the entire ordinance on the ballot amounts to an irregularity in the election that is substantial enough to void the election. The general rule toward election irregularities is:
‘Provisions reserving to the people the power of initiative and referendum are to be given a liberal construction to effectuate the policy thereby adopted.’ City Commission of Albuquerque v. State, 75 N.M. 438, 405 P.2d 924 (1965).
In the City of Fargo v. Sathre, 76 N.D. 341, 36 N.W.2d 39 (1949), the North Dakota court, quoting from a very old Indiana case, stated:
“All provisions of the election law are mandatory, if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void. ( Jones v. State, 153 Ind. 440, 55 N.E. 229, 233).'
‘...
‘The reason behind this rule is that the will of the people freely and intelligently expressed ought not to be defeated because of the mistake of an officer or of any technical fault.’
New Mexico recognizes that technicalities need not disturb the results. See, in particular, State ex rel. Palmer v. Miller, 74 N.M. 129, 391 P.2d 416 (1964), where this Court stated:
‘In addition, we accept as correct the statement that election laws should be liberally construed so as to accomplish their purpose and that technicalities should not be permitted to deprive voters of their franchise or render an election void.’
See, also, Roberts v. Cleveland, 48 N.M. 226, 146 P.2d 120 (1944), wherein this Court said:
‘...(T)he regulations imposed are not conditions upon compliance with which the right comes into being, but are regulations intended merely to regulate the exercise of the right in an orderly way.’
Roberts, supra, involved candidates and filing petitions and party affiliations but there is no reason to say that the general rule does not still apply to the case before us. The voters in this case did speak on the issue of fluoridation and with the amount of publicity that attended the election on this issue we cannot justify holding the election void because of the so-called irregularities and thus circumventing the will of the voters involved.
This point is well stated in Truman v. Royer, 189 Cal.App.2d 240, 11 Cal.Rptr. 159 (1961):
‘Inasmuch as the power of referendum is one reserved to the people, and in order to protect the people in the exercise of this power, statutory and charter provisions dealing with such powers are always liberally construed in favor of the power.’
Not only does the law direct protection of the voter but our statutory language could be construed as requiring only a summary of the ordinance to be decided upon. Our statute states ‘the ballot shall contain the text’ while most mandatory statutes state ‘full text.’ The court in Opinion of the Justices, 309 Mass. 555, 34 N.E.2d 431 (1941) said:
‘The words ‘full text,’ as used in constitutional provisions, refer to the precise terms of a proposed measure and nothing more.'
The use of the word ‘text’ alone, under the circumstances of this case, does not negate the fact that the voters were adequately protected, and we will not thwart the will of the people on the basis of a technicality.
Point IV, concerning the use of voting machines, and Point V, regarding the printing of the ballot in English and Spanish, were not included in the praecipe and we will not consider these points on this appeal. See Rule 12(1), Supreme Court Rules, supra; City of Hobbs v. Chesport, Ltd., supra.
The decision of the trial court is affirmed.
It is so ordered.
COMPTON, C.J., and OMAN, J., concur.

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Paduano v. City of New York

New York, Improper Procedure, Unlicensed Practice of Medicine/Compulsory Medication, State police power

Plaintiff

Dominick F. Paduano et al.

Defendant

City of New York et al.

State

New York

Other Parties

-

Case Tags

- Improper Procedure

- Unlicensed Practice of Medicine/Compulsory Medication

- State police power

Citation

45 Misc. 2d 718; 257 N.Y.S.2d 531 (N.Y. Sup. Ct. 1965)

Year

1965-00-00T00:00:00

Court Name

Supreme Court of New York

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Burst J

Opinion Text

JOSEPH A. BRUST, Justice.
In this action wherein plaintiffs, as taxpayers, seek to enjoin pendente lite and permanently, the proposed program for the fluoridation of the municipal water supply of New York City, there are two applications before this Court, (1) plaintiffs' application for a temporary injunction, and (2) defendants' cross motion for an order dismissing the complaint.
Plaintiffs assert numerous causes which may be placed into two main categories. They assert that there were procedural defects in the manner in which the fluoridation program was adopted; specifically concerning the manner of appropriating monies for the implementation of the program and the alleged failure to comply with State law which requires, in plaintiffs' view, a local law before fluoridation can be adopted by the City. The second category concerns, primarily, constitutionally based objections to the program, and assertions that in the present posture of scientific knowledge in this area, fluoridation would be not only improper but unconstitutional.
The complaint sets forth three causes of action and in the second cause, which this Court will consider first, plaintiffs allege that the City may not lawfully expend funds for the proposed project because no local law has been passed authorizing such action.
The fluoridation program proposed for this City was formally authorized by a new section 141.08, of the New York City Health Code enacted by the New York City Board of Health on April 7, 1964, which provides as follows:
‘Section 141.08 Fluoridation of public water supply
‘The public water supply of the city of New York shall be fluoridated in the following manner:
‘A fluoride compound shall be added which will provide in such water supply a concentration of approximately 1.0 part per million of the fluoride ion, provided, however, that the concentration of such ion shall not exceed 1.5 parts per million.’
This amendment was filed with the City Clerk of the City of New York on April 7, 1964 and took effect on that date in accordance with the provisions of Section 558 of the New York City Charter.
The authority of the Board of Health to act in this general area is derived from Sections 555-558 of the New York City Charter. Section 558, subdivision a, provides that the New York City Health Code ‘shall have the force and effect of law.’
While the New York City Sanitary Code (the predecessor of the present City Health Code, which superseded the Sanitary Code as of October 1, 1959) was in effect, it was repeatedly declared that the Sanitary Code and amendments thereto, had the force of state law. Matter of Bakers Mut. Ins. Co. (Dept. of Health) 301 N.Y. 21, 27, 92 N.E.2d 49, 51 (1950). In Matter of Bakers Mut. Ins. Co. supra, in which the validity of an amendment to the New York City Sanitary Code was sustained, the Court of Appeals declared (p. 27, 92 N.E.2d p. 52):
‘The intent of the Legislature in providing for such a statutory scheme seems to us to have been simply this: The Sanitary Code of the City of New York is to have within that city the force and effect of State law while elsewhere in the State the [State] Sanitary Code and Public Health Law of the State are to be supreme. Cf. People v. Blanchard, 288 N.Y. 145, 42 N.E.2d 7.’
In Metropolitan Ass'n of Private Day Schools Inc. v. Baumgartner, 41 Misc.2d 560, p. 564, 245 N.Y.S.2d 733, p. 738, the court affirmed the same proposition as to the New York City Health Code, stating:
‘...the Health Code of the City of New York has the force and effect of state law within the city's boundaries. ( Matter of Bakers Mutual Insurance Co. [Dept. of Health], 301 N.Y. 21, 92 N.E.2d 49.)’
Subdivision b of Section 558 authorizes the Board of Health to add to, alter, or amend any part of the health code and to publish additional provisions ‘for the security of life and health in the city’, and Section 556, subdivision a, empowers the Health Department to ‘regulate all matters affecting health in the city’.
The power of the Board to enact provisions for the furtherance and protection of health has long been established as a constitutional exercise of power (Metropolitan Board of Health v. Heister, 37 N.Y. 661; People v. Blanchard, 288 N.Y. 145, 42 N.E.2d 7; Matter of Conlon v. Marshall, 185 Misc. 638, 59 N.Y.S.2d 52 [Sup.Ct., Kings Co., 1945], affd. without opinion 271 App.Div. 972, 68 N.Y.S.2d 438 [Second Dept., 1947]; Quaker Oats Co. v. City of New York, 295 N.Y. 527, 538-539, 68 N.E.2d 593, 597, 598 [1946], affd. Hill Packing Co. v. City of New York, 331 U.S. 787, 67 S.Ct. 1314, 91 L.Ed. 1817).
Article 17, Section 3, of the State Constitution, effective January 1, 1939, provides:
‘The protection and promotion of the health of the inhabitants of the state are matters of public concern and provision therefor shall be made by the state and by such of its subdivisions and in such manner, and by such means as the legislature shall from time to time determine.’
Concerning this provision, it is stated in the revised record of the 1938 Constitutional Convention, at page 2133, that it was to validate the police power as then ‘practiced in the State of New York’ and, when applied to public health, such police power is not merely the power to restrain and regulate the use of property, but is rather ‘a constructive program for the promotion of positive health’.
In addition, the New York City Charter Revision Commission Report, dated August 17, 1936, indicates that the charter, effective January 1, 1938, is intended to confer ‘extraordinary’ and ‘plenary’ powers of legislators for the protection of health upon the Board of Health, and the Report further states at page 38:
‘The Board of Health exercises extraordinary police powers affecting the health of the City. By its power to adopt a Sanitary Code the Board has plenary powers of legislation.’
In Matter of Stracquadanio v. Department of Health, 285 N.Y. 93, 97, 32 N.E.2d 806, 808 the Court stated:
‘Clearly section 558 of the New York City Charter endows the Board of Health with a broad discretion in the selection of measures by which public health may be protected within the field of its jurisdiction.’
And, further, in People v. Blanchard, 288 N.Y. 145, 147, 42 N.E.2d 7, 8:
‘...[T]he main business of safeguarding the public health has always of necessity been done by local boards or officers through sanitary by-laws or ordinances which have been accorded the force of law. Metropolitan Board of Health v. Heister, 37 N.Y. 661, 670; Polinsky v. People, 73 N.Y. 65.’
Regardless of its validity, the fluoridation program is obviously directed towards the ‘security of the life and health’ of the citizens of New York City, and is an attempt to cope with the serious and growing public health problem of tooth decay and dental neglect, particularly among children. To hold otherwise would require a finding that fluoridation, regardless of its merits, is a measure which has no direct bearing on a public health problem. Adopting plaintiffs' substantive arguments at face value arguendo, the most that could be said is that there is a strong difference of opinion as to the value of fluoridation and that it may not be the best means of attacking the problem of tooth decay and dental neglect. However the problem still remains fundamentally one of health and is therefore within the jurisdiction of the New York City Department of Health.
This Court finds that the aforementioned new Section 141.08 of the New York City Health Code offends no public policy of this State, contravenes no prevailing State statute or municipal ordinance and is not in excess of the Health Department's power (see Grossman v. Baumgartner, 40 Misc.2d 221, 242 N.Y.S.2d 910, revd. 22 A.D.2d 100, 254 N.Y.S.2d 335). Accordingly, the second cause of action is legally insufficient and must fall.
The first cause of action is based on an attack upon the procedures used, and to be used to appropriate monies for the implementation of the fluoridation program. After public hearings duly held by the Board of Estimate of The City of New York and the Finance Committee of the Council of the City of New York, a proposal was adopted by the Council modifying the expense budget for 1963-1964 and authorizing the expenditures of funds from the expense budget for the acquisition and installation of the necessary equipment and facilities.
Plaintiffs assert that this was illegal, claiming that the proper method of appropriating funds for this program should have been by an amendment to the City's capital budget, and that the City is without power to use expense budget monies for this particular purpose unless the capital budget is amended.
It appears that the fluoridation equipment will be installed in existing City structures and that about 90 per cent of the appropriated sum, exclusive of engineering costs, will be expended for acquisition and installation of equipment. A project need not be handled through the capital budget and capital budget appropriation if it is intended that the costs of the project be met wholly out of the expense budget appropriation and not by any City borrowing. The entire history of the capital budget provisions of the City Charter, as they were amended from time to time, establishes beyond doubt, that the capital budget, as an appropriation document, is concerned solely with capital improvements provided by the device of borrowing and pledging the credit of the City, with the power in the Mayor of the City of New York to extend the limit of such borrowing by not more than 15 per cent above the sum appropriated in the capital budget.
Section 225 of the City Charter provides:
‘No obligations of the city shall be issued or authorized for or on account of any capital project not included in a capital budget, or in excess of the maximum amount of obligations which may be issued on account of a project as fixed in such capital budget; and no amount may be expended on account of any capital project in excess of the amount appropriated therefor in a capital budget, except that the amount appropriated therefor may be increased by the mayor by not more than fifteen per centum thereof in order to meet any costs required to advance such project.’
What is prohibited by the Charter is the issuance of any evidence or certificate of obligation by a City borrowing monies to provide for a capital project unless such borrowing is provided by a capital budget appropriation. There has been no allegation by plaintiffs or proof that any bonds or other obligations of the City will be issued to obtain funds to finance the program herein. While allowance of capital expenditures through the device of inclusion in the expense budget may afford a method of circumvention of the procedures surrounding capital budget appropriations, this procedure is legally permissible and there is no basis presented for judicial interference in this area.
Accordingly, the first cause of action is legally insufficient and must also fall.
The third cause of action is based on plaintiffs' allegations and contentions (a) that other methods of reducing tooth decay are available; (b) that fluoridation is discriminatory in that it allegedly benefits children only; (c) that fluoridation unlawfully imposes medication on plaintiffs against their will; and finally, (d) that fluoridation ‘is or may be’ dangerous to health. Plaintiffs also contend, in an affidavit submitted herein by a non-party, that the religious freedom of certain groups in the community will be unconstitutionally impaired by fluoridation. However, no such allegation is set forth in the complaint and, accordingly, this issue is not properly before this court at this time. This court may only concern itself with the issues raised by the pleadings. FN1
FN1 It appears that the allegation of infringement of religious liberty has been determined adversely in other courts and that those determinations, in effect, were affirmed by the United States Supreme Court in its dismissal of the appeal in Kraus v. City of Cleveland, 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463, reported below, 163 Ohio St. 559, 127 N.E.2d 609; see also, Dowell v. City of Tulsa, Okl., 273 P.2d 859, cert. den. 348 U.S. 912, 75 S.Ct. 293, 99 L.Ed. 715; De Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98, cert. den. 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135; Baer v. City of Bend, 206 Or. 221, 292 P.2d 134; Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242.
Plaintiffs allege, in effect, on the basis of these contentions, that the city's fluoridation program violates the privileges and immunities clause of the 14th Amendment to the Federal Constitution and also the New York State Constitution, Article I, Section 1, the equal protection clauses of both constitutions, and the due process clause of the 14th Amendment to the United States Constitution. Finally, plaintiffs also claim that the city's fluoridation program violates the New York City Public Health Law in that the city allegedly lacks the power to add any substance to its water supplies which is not related to prevention of waterborne disease or maintenance of the purity and potability of such water supplies.
Both parties hereto have submitted a mass of documentary evidence attesting to the point of view advanced by each as to the beneficial or possibly detrimental nature of fluoridation. In the face of this mass of evidence, this Court will deem the defendants' cross motion as one for dismissal on the merits before answer, in the nature of summary judgment, pursuant to CPLR, Section 3211, subdivision (c).
It has already been noted that the Board of Health has the power to, and did, act in legislative capacity under State legislative authority. It is not disputed that the matter of tooth decay and dental neglect among 500,000 of the City's children presents a growing public health problem. Public hearings were held on November 18th and 19th, 1963, by the New York City Board of Estimate and the Finance Committee of the City Council on the proposal to appropriate the funds required for the acquisition and installation of the necessary fluoridation equipment and facilities. The testimony and proofs taken at those hearings, comprising a record of approximately 900 pages, are before the court. The testimony is summarized in affidavits submitted to the court by highly qualified experts, researchers and engineers. The record discloses that 48,000,000 people in the United States and Canada have been consuming municipally fluoridated water for years without any substantial evidence of harm to health and that 7,000,000 additional people in this country have, for generations, consumed naturally fluoridated waters with a content similar to, or greater than, the one-part-per-million level contemplated for New York City also without any verified harm to health.
Fluoridation as a public health practice has been exercised in the United States for almost twenty years. It is not disputed that dental caries affect a substantial percentage of our population, particularly the more disadvantaged who are not disposed or able to undertake programs of proper dental care. It is also clear that fluoridation is effective in combatting dental caries among the young, and its effects last through adulthood. Fluoridation of the water supply is also the most efficacious, probably the cheapest, and may be the only practical method of insuring the administration of this drug to the very young.
Plaintiffs assert that other means are available whereby fluorides may be provided for those desirous of using them. But the question before this Court is solely whether the means proposed herein are lawful. The existence of other possible remedies is not relevant ( Jacobson v. Com. of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643, United States v. Carolene Products Company, 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234). In the Jacobson case, at page 35 of 197 U.S., at page 365 of 25 S.Ct., it was stated:
‘Since ...vaccination, as a means of protecting a community against smallpox, finds strong support in the experience of this and other countries, no court, much less a jury, is justified in disregarding the action of the legislature simply because in its or their opinion that particular method was-perhaps, or, possibly-not the best either for children or adults'.
As to plaintiffs' claim that fluoridation is discriminatory for it benefits children only, all that need be said is, that in the usual course, children become adults and that fluoridation will, commencing with the date of its adoption, ultimately affect all.
Plaintiffs lay special emphasis upon ‘individual liberty’ and the compulsive aspect of municipal fluoridation in shrinking this area. In support of this, plaintiffs quote from Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, p. 29, 25 S.Ct. 358, p. 363, wherein the Supreme Court held constitutional a regulation requiring vaccination, as follows:
‘There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government,-especially of any free government existing under a written constitution, to interfere with the exercise of that will.’
However, this Court also stated:
‘But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect to his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.’
The Court of Appeals of this State similarly upheld the propriety and constitutionality of a vaccination statute ( Matter of Viemeister v. White, 179 N.Y. 235 at p. 238, 72 N.E. 97 at p. 98, 70 L.R.A. 796), stating:
‘When the sole object and general tendency of legislation is to promote the public health, there is no invasion of the Constitution, even if the enforcement of the law interferes to some extent with liberty or property.’
It is true that the issues presented in the aforementioned Jacobson and Viemeister cases involved communicable infectious diseases and did not involve a disease such as dental caries, which admittedly is not a communicable infectious disease. At the worst, if unchecked, dental caries can cause a degeneration of the physical condition of the individual, but its effect upon society generally is, at its best, quite indirect. Nor do those cases which upheld the chlorination of municipal water supplies afford a compelling precedent. The addition of chlorine is effected to remove existing or threatened impurities in a water supply and to meet the obligation of the supplier, often imposed by statute, to supply pure water to its citizens. The addition of fluorides would serve a far different purpose-one completely unrelated to the purity of the water supply, and not aimed at combatting a threat to health posed by the state of the water supply prior to the addition of fluorides.
Defendants contend that ‘The judicial function is exhausted with the discovery that the relation between means and end is not wholly vain and fanciful, an illusory pretense’ ( Williams v. Mayor and City Council of Baltimore, 289 U.S. 36, 42, 53 S.Ct. 431, 433, 77 L.Ed. 1015) and that ‘It is not for the courts to determine which scientific view is correct in ruling upon whether the police power has been properly exercised’ ( Chiropractic Ass'n of New York v. Hilleboe, 12 N.Y.2d 109, 114, 237 N.Y.S2d 289, 291, 187 N.E.2d 756, 757). The non-fluoridation cases heretofore cited all involved communicable diseases or the regulation or use of equipment which was dangerous to the public generally and, for the reasons above noted, are inapposite. As far as this court can determine, the highest courts of our State and of the United States have not yet decided whether a State, in the proper exercise of the police power, can force individuals to take medication in these non-contagious diseases which are not extremely debilitating to the individual concerned and which can be prevented by other readily available and inexpensive means. Some have argued that in so doing, the government is confusing expediency with obligation, and stepping out of a role of protector of the individual's rights, to one as arbiter of them. They assert that if this right of the State is upheld, it may equally interdict the use of tobacco, alcohol or rich foods, and introduce into the water supply aspirin to prevent headaches, or any other drug that may be developed in the future to prevent any type of disease, such as allergies, etc. It should be here noted that if the condition attacked were in the nature of an ‘adult’ disease, rather than, as in the instant case, one where the treatment, to be efficacious, must be given to the very young, different considerations would be present. However, the health of our children is a legitimate area of public and governmental concern, whether under the police power of the State, or in the exercise of the State's power to protect the general welfare. It is not shocking to realize that the State, acting in the interest of children, too young to be sui juris, may intervene in the parental area.
This question has been presented to the highest courts of several other states and it has been universally held that fluoridation does not unconstitutionally invade the rights of the citizens. (See De Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98, cert. den. 347 U.S. 1012, 74 S.Ct. 863; Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142, app. dismd. 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701; Kraus v. City of Cleveland, Ohio App., 121 N.E.2d 311, affd. 163 Ohio St. 559, 127 N.E.2d 609, app. dism d. 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463; Dowell v. Tulsa, 273 P.2d 859 [Okl.], cert. den. 348 U.S. 912, 75 S.Ct. 293; Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352; Birnel v. Town of Fircrest, 53 Wash.2d 830, 335 P.2d 819; Froncek v. Milwaukee, 269 Wis. 276, 69 N.E.2d 242; Baer v. Bend, 206 Or. 221, 292 P.2d 134; City Commission of Ft. Pierce v. State ex rel. Altenhoff, 143 So.2d 897 [Fla.]; Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W.2d 569; Readey v. St. Louis County Water Co., 352 S.W.2d 622 [Mo.]).
In only two cases have the courts voiced even qualified objections to the constitutionality of fluoridation. (see McGurren v. City of Fargo, 66 N.W.2d 207 [N.D.]; Teeter v. Municipal City of LaPorte, 236 Ind. 146, 139 N.E.2d 158.) In the latter case, the appellate court based its overruling of the sustaining of defendant's demurrer on the ground that ‘under the present state of scientific experience and opinion we do not feel we are in a position to hold conclusively as a matter of law fluoridation will not have cumulative toxic effects'. ( id. at 151, 139 N.E.2d at 161). However, see Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93, indicating that, in the field of health matters, ‘What is harmful or injurious is a matter for the legislature rather than the courts.’ ( Grossman v. Baumgartner, 22 A.D.2d 100, 101, 254 N.Y.S.2d 335, 337.) In the McGurren case, supra, the court held that it would not be unreasonable to find that fluoridation violated an implied contract between the city and its inhabitants that the city would furnish only pure water. Accordingly, except for the two last cited cases, the approach of the courts has been to uphold fluoridation if it could be found that fluoridation was a reasonable method of preventing a widespread detrimental health condition which the executive or legislative branches of the government believed desirable to treat. In effect, the courts have therefore generally held that their review of fluoridation measures are subject to the same limitations as to scope that exist in the customary review of administrative actions. It should also be noted at this point that the United States Supreme Court has either dismissed appeals or denied certiorari in cases which squarely presented as the primary or sole question for review the constitutionality of fluoridation of a water supply. In the following cases, the appeals were dismissed for want of substantial Federal question: Chapman v. City of Shreveport, supra; Birnel v. Town of Fircrest, supra; in the following cases, certiorari was denied: De Aryan v. Butler, supra; Dowell v. City of Tulsa, supra; Readey v. St. Louis County Water Co., supra; Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326, cert. den., 85 S.Ct. 655 (Jan. 18, 1965). While denials of certiorari do not constitute decisions on the merits, it is clear that the Supreme Court has repeatedly held that no substantial Federal questions are presented by objections to fluoridation.
The question of the desirability of fluoridation is immaterial. In the face of the overwhelming precedents previously cited, and in accordance with general principles of stare decisis, this court sitting at Special Term, feels constrained to deny plaintiffs' application for a temporary injunction and to grant defendants' motion for a dismissal of the complaint. Until the scientific evidence as to the deleterious effects of fluoridation reaches beyond the purely speculative state now existing, decisional law mandates the holding that the controversy should remain within the realm of the legislative and executive branches of government. While the courts do not have a right to impose fluoridation upon anyone, judicial restraint requires us to adhere to the uniform decision holding that the executive and legislative branches of government do-at least until some proof is adduced that fluoridation has harmful side effects and therefore is not in the interests of the community. In so holding, the Court is aware that no truly applicable analogy exists in other areas of judicially approved government-mandated action. In other cases, where the citizenry is mandated to do something primarily for the benefit of the individual citizen and with at most an indirect effect on society generally, alternatives are usually provided for those members of the public who do not wish to submit themselves to such requirements. For example, the case of compulsory education with the alternative of sending a child to private school comes to mind. This Court is also aware that if such harmful effects become evident in the future, almost by definition, damage will have already befallen those forced to partake of fluoridated water by the action herein upheld. However, courts are traditionally, and with good cause, reluctant to act until the harm threatened becomes real, evident, and imminent.
For the reasons above noted, the plaintiffs' motion for temporary injunction is denied, and defendants' cross motion to dismiss the complaint is granted.

HOWARD A. ZELLER, Justice.
‘Shall a proposed local law, to amend Sections 3-17 and 5-17 of the Ithaca City Charter, to prohibit the fluoridation of the water supplied by the City be approved?’ This proposal was approved by a majority of the qualified voters of the City at the general election of November 2, 1965. In this taxpayer's action plaintiff moves for summary judgment declaring this purported amendment of the City Charter invalid. There are no factual issues requiring a trial. This court may not concern itself with the merit or folly of fluoridation but only with the legal issue of whether or not the local law is a legally adopted charter amendment. Immaterial to this judicial decision is the fact that over 200 municipalities in this State do fluoridate their water supplies, that the State Department of Health does have the authority to grant municipalities permission to add fluorine compounds to drinking water supplies and that many scientific researchers believe such compounds are beneficial and not harmful.
By resolutions adopted on October 7 and November 4, 1964, the Common Council of the City of Ithaca voted to fluoridate the City's water supply. Early in 1965, a petition signed by 10% of the qualified voters was transmitted to the Common Council in accordance with subd. 2 of section 37 of the Municipal Home Rule Law. It requested submission to the electorate of the following local law (matters italicized constituting the proposed additions to the Charter and matters in brackets the proposed omissions):
‘A LOCAL LAW to amend the Ithaca City Charter (New York Laws of 1908, Chapter 503), in relation to the fluoridation of the water supplied by the City of Ithaca
Be IT ENACTED BY THE COMMON COUNCIL of the City of Ithaca as follows:
Section 1. Sec. 3-7, of Article III., of the Ithaca City Charter, is hereby amended to read as follows:
Sec. 3-7. General legislative powers.
The legislative power of the city is vested in the common council, and it has power to enact and enforce any ordinance or resolution, not repugnant to the constitution or laws of this state, for any local purpose pertaining to the government of the city and the management of its business, the protection of the business and property interests of its citizens, the preservation of order, peace and health, and the safety and welfare of the city and the inhabitants thereof [;], except that it shall not enact or enforce any local law or ordinance or resolution for any purpose pertaining in any manner to the fluoridation of the water under the control of the city or of the water department of the city government; and it shall also have such powers of legislation, by ordinance or resolution, as are conferred upon it by this act (L.1908, Ch. 503), or any other provision of law affecting the city not inconsistent with this act (L.1908, Ch. 503), except such as are specially conferred by this act (L.1908, Ch. 503) upon any separate department or board of the city government. It shall have the management and control of the finances, and of all the property, real and personal, blonging to the city, except as otherwise provided by this act (L.1908, Ch. 503) or by any other provision of law not inconsistent therewith. The powers conferred by this section are not limited by the enumerated powers in the following section. (L.1908, Ch. 503, § 34)
‘Section 2. Sec. 5-17, of Article V., as amended, of the Ithaca City Charter, is hereby amended to read as follows:
Sec. 5-7. Scope of authority of board of public works.
The board of public works shall take charge and, subject to the limitations herein contained, have exclusive control of, the following departments of the city government, of the property belonging thereto, and to of the appropriations made therefore: (1) Water., except that it shall not in any manner fluoridate the water under the control of the water department of the city government. (2) Sewers and drains. (3) Streets and sidewalks. (4) Creeks and bridges. (5) Street lighting. (6) Parks. (7) Cemeteries. (8) Garbage. (9) Public buildings and propert, but not buildings or property for use of the fire department. (10) Such other departments as may be assigned to the board under the provisions of section one hundred and forty-five (5-43) of this act (L.1908, Ch. 503). (L.1908, Ch. 503, § 123; L.L.1951, No. 1, § 1; L. 1953, Ch. 878, § 127; L.L.1960, No. 2, § 1)
Section 3. The resolutions of the common council of the City of Ithaca made on October 7, 1964, and November 4, 1964, approving the fluoridation of the city's water supply and directing the board of public works to implement said resolutions to provide for such fluoridation are hereby rescinded and repealed.
Section 4. This Local Law shall take effect upon the filing thereof in the Office of the Secretary of State.'
On April 7, 1965, the Common Council voted to submit the proposed local law to the voters at the following general election. Thereafter pursuant to subd. 6 of section 37 of the Municipal Home Rule Law another petition requesting the submission of the same proposed local law was filed. The City Clerk on June 8, 1965 requested the Election Commissioners to place on the ballot the proposal in the form heretofore quoted.
‘Direct legislation in cities must always rest on some constitutional or statutory grant of power. Government by representation is still the rule. Direct action by the people is the exception.’ (Matter of McCabe v. Voorhis, 243, N.Y. 401, 413, 153 N.E. 849, 851.)
Defendants urge that the Municipal Home Rule Law (adopted by the Legislature and effective January 1, 1964) permitted the submission of the proposed local law to the electorate. Plaintiff claims principally that the Municipal Home Rule Law did not authorize the submission of this proposed local law to the electorate as it was not in truth a charter amendment but an attempt by the electorate to nullify resolutions of the Common Council and to legislate in a field within which the electorate is not authorized to assert control directly.
Defendants cite Matter of Warden (Newburgh Police Dept.), 300 N.Y. 39, 88 N.E.2d 360 as the exact precedent for their position. Plaintiff claims that Matter of Astwood v. Cohen, 291 N.Y. 484, 53 N.E.2d 358 mandates a judicial declaration that the local law is a subterfuge and not a genuine charter amendment.
Matter of Astwood was decided in 1943 by a 5 to 2 vote of the Court of Appeals. A petition had been filed with the City Clerk requesting submission to the electorate of New York City of a proposed local law providing for payment of a salary bonus to policemen and firemen. Noting that the City of New York operated under a short form city charter and an Administrative Code, the majority of the Court decided that the proposed local law would not amend the Charter but only change portions of the Administrative Code and found nothing in the City Home Rule Law (the predecessor to the Municipal Home Rule Law) which would permit direct action by the voters to change the Administrative Code. The majority of the Court of Appeals affirmed an order forbidding the Board of Elections to print the proposed local law on the election ballots. The dissenters stated that an amendment to a city charter could include ‘not only corrections or alterations of an antecedent text but also additions wholly alien thereto.’ (p. 491, 53 N.E.2d p. 361.)
In 1949 a unanimous Court of Appeals decided Matter of Warden (Newburgh Police Dept.), 300 N.Y. 39, 88 N.E.2d 360. A petition had been filed with the Newburgh City Clerk requesting submission to the electors of a proposed local law which purportedly would alter the City Charter by adding a provising fixing minimum and annual salaries for members of the police department. A court proceeding was brought to prohibit the submission of the proposed local law to the voters on the grounds that (1) the proposed local law has no relation to any provision of the existing city charter and (2) the power to fix salaries is administrative rather than legislative and confined by the charter solely to the council of the city. The Supreme Court at Special Term dismissed these objections and the Appellate Division affirmed. The Court of Appeals also affirmed noting that the 1944 amendment to the City Home Rule Law (L.1944, Ch. 602) permitted such an amendment to the Newburgh Charter which contains many provisions respecting matters of assessments and local taxes, the operation and control of public works, the supply of water and the organization and regulation of the police and fire departments. The Court of Appeals distinguished Astwood on the ground that the City of New York Charter was a ‘short form’ charter and a ‘mere skeleton or framework of governmental structure’ unlike the Newburgh Charter.
The 1944 amendment to the City Home Rule Law provided in section 2: ‘(5) the term ‘charter amendment’ means any change in an existing charter presented as such under authority of this chapter or any charter or state statute. A charter amendment may be of any extent and may deal with any number of subjects. ...' It further provided that a charter could be amended ‘however extensively’.
The Court of Appeals in Matter of Warden stated that the 1944 amendment to the City Home Rule Law wiped out any distinction between a charter amendment relating to an administrative rather than a legislative power. It also questioned-but did not decide-whether the 1944 amendment would permit additions unrelated to existing provisions of a short from charter. (p. 43, 88 N.E.2d p. 362.)
Matter of Warden when read with the Ithaca City Charter and the applicable sections of the Municipal Home Rule Law is persuasive authority for declaring the local law prohibiting fluoridation is in fact an amendment to the Ithaca City Charter and valid.
The Municipal Home Rule Law, section 2 defines ‘Charter’ and ‘Charter Amendment’ as follows:
‘1. ‘Charter.’ A state statute or a local law which establishes or continues a specific county, city of village as a municipal corporation or body politic and includes the fundamental provisions defining, extending or limiting its corporate powers or affecting the framework of its government.'
‘2. ‘Charter amendment.’ A new charter or any change in an existing charter presented as such under authority of this chapter or any state statute or charter. A charter amendment may be of any extent and may deal with any number of subjects.'
Section 37 of the Municipal Home Rule Law authorizes amending city charters ‘however extensively.’
Even prior to the 1944 amendment to the City Home Rule Law the Court of Appeals stated that it did not consider that amendments to city charters need be limited to those ‘which affect structure only.’ ( Matter of Astwood, supra, 291 N.Y. p. 488, 53 N.E.2d p. 359.)
The Ithaca City Charter is not a ‘short form’ charter. For example it grants the Common Council authority to pay a cost of living bonus to employees during a war emergency (L.L.1943, No. 1; L.L.1950, No. 3); it details the duties of the fire marshal (L.1912, Ch. 139); it authorizes the mayor to appoint a police commissioner but prohibits the appointment of one who is interested in a saloon or hotel or concerned in the manufacture or sale of spirituous or malt liquors, ale or beer (L.1908, Ch. 503, sec. 21); it provides the common council shall hold regular meetings on the first Wednesday of each month (L.1908, Ch. 503, sec. 31); it fixes the fees to be charged on unpaid taxes (L.1908, Ch. 503, sec. 41; L.1921, Ch. 513, sec. 1); it sets forth the form of a summons to be used in a City Court civil action (L.1931, Ch. 415, sec. 25).
The Charter vests the Common Council with the power to enact and enforce ordinances or resolutions ‘pertaining to...the preservation of order, peace and health, and the safety and welfare of the city and the inhabitants thereof.’ (L.1908, Ch. 503, sec. 34). In addition it confers on the common council the power to direct the location of slaughterhouses, to prevent the flying of kites having a tendency to endanger persons or frighten horses, to restrain the running at large of cattle, swine, goats and geese, to require suitable fire escapes, and to regulate or prohibit a variety of other matters. (L.1908, Ch. 503, sec. 35; L.1910, Ch. 455, sec. 2; L.1910, Ch. 462, sec. 1; L.1917, Ch. 425, sec. 1).
Thus it is clear that the Ithaca City Charter is no ‘mere skeleton or framework of governmental structure’.
The test enunciated in Astwood and applied in Warden is whether ‘the proposed law is in truth an amendment of the Charter or is so far unrelated to the Charter as to be an emendment only in name. ...’ ( Matter of Warden, supra, 300 N.Y. p. 42, 88 N.E.2d p. 361.) The amendment prohibiting fluoridation of the water supply relates to the power of the common council to regulate ‘health, and the safety and welfare of the city and the inhabitants thereof.’ It places a limitation on such power. It does meet the test of being in truth-and not in name only-an amendment to the detailed Charter of the City of Ithaca.
Plaintiff's other objections relate at most to procedural or technical defects which are not of sufficient substance to invalidate the local law.
Plaintiff's motion for summary judgment should be denied, Summary judgment dismissing the complaint upon the merits should be granted (CPLR 3212(b)).

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Village of Tully v. Harris

New York, Improper Procedure

Plaintiff

Village of Tully et al.

Defendant

William A. Harris, Onondaga County Commissioner of Health

State

New York

Other Parties

-

Case Tags

- Improper Procedure

Citation

119 A.D.2d 7; 504 N.Y.S.2d 591 (N.Y. App. Div. 1986)

Year

1986-00-00T00:00:00

Court Name

Supreme Court of New York, Appellate Division, Fourth Department

Abstract

-

Description of Legal Challenge

-

Opinion #

-

Opinion Judges

Schnepp

Opinion Text

SCHNEPP, Justice.
The appeal in this CPLR article 78 proceeding is from the judgment dismissing the petition which sought to annul the order of the Commissioner of Health of Onondaga County requiring fluoridation of the Village of Tully's public water supply. The Village of Baldwinsville received a similar order and was permitted to intervene in this proceeding as a copetitioner. The orders state that before adding fluoride compounds a public water “supplier must... make written application to and receive approval from the State Commissioner of Health” and direct that each village “take all necessary steps” to comply therewith. The Onondaga County Sanitary Code clothes the Commissioner of Health with the authority to require fluoridation in compliance with the New York State Sanitary Code which prescribes that fluoridation must be approved by the State Commissioner of Health (see, 10 NYCRR 5-1.24). The Villages claim that the provisions of the Onondaga County Charter, adopted by the County Board of Supervisors in 1961, which pertain to the creation and administration of the county health district and department of health (Onondaga County Charter, art. XVI), and the Sanitary Code, which was adopted by the County Legislature in 1968 pursuant to the Charter, are inconsistent with the Public Health Law and thereby null and void.
Special Term held that the Onondaga County Charter and Sanitary Code are constitutionally valid and proper. We agree and so declare. In our view, the provisions of the Charter and Sanitary Code supersede the requirements of the Public Health Law.
Guidelines for the establishment and organization of county and part-county health districts are found in title III of article 3 of the Public Health Law (§§ 340-357). Section 340(1) directs that “[t]he board of supervisors of any county, with the approval of the [State] commissioner shall have power to establish a county...health district and in such event shall appoint a board of health....” Section 343 provides that the board of health of a county “shall consist of seven members.” Section 347(1) provides that a county board of health “shall exercise all the powers and perform all duties of local boards of health as provided in this chapter” and may adopt rules, regulations, orders and directions “which shall not be inconsistent with the provisions of this chapter and the [State] sanitary code” and which “shall be known as the sanitary code of such district.” Section 347(1)(a) provides, however, for the filing of rules and regulations “adopted by a board of health or a county officer or body exercising the rule-making functions of a board of health” (emphasis supplied; added L.1974, ch. 199). Section 351 provides for the appointment of a “county health commissioner” who shall serve for a term of six years and “possess such qualifications for office as are prescribed in the sanitary code.” Prior to 1975, § 351 provided for the appointment of a county health commissioner by the board of health; however, since 1975 the statute has also provided for appointment by the county executive “in those counties where the county charter provides” (added L.1975, ch. 83). The Commissioner's powers and duties are described in § 352. Significantly, county health commissioners possess all the powers of local health officers and additional powers which may be delegated to the commissioner “with the approval of the county board of health, or the county manager or county executive in those counties having an optional or alternative form of county government ” (emphasis supplied; Public Health Law § 352[3] [a], [4] ).
Onondaga County did not adhere strictly to these guidelines in the formation of the county health department and board of health, the appointment of and delegation of power to the county health commissioner, or the adoption of the sanitary code. Contrary to Public Health Law § 340, the county charter provides for a “health advisory board”, rather than a board of health. Consistent with the designation of the board as an advisory body, the charter assigns the various powers of a board of health as defined in the Public Health Law to the board of supervisors [now the County Legislature], the county executive and the county commissioner of health. Under the charter, the function of the health advisory board is to “advise on matters relating to the preservation and improvement of the public health” and, “subject to the approval of the commissioner”, to “recommend and submit to the board of supervisors for adoption” a county sanitary code “not inconsistent with the public health law or state sanitary code”. The charter delegates the power to appoint the commissioner of health to the county executive, establishes a term of four years for the office of commissioner, and assigns to the commissioner all the powers conferred or imposed by law upon county health commissioners or county boards of health (Onondaga County Charter, art. XVI). Pursuant to the charter, Onondaga County's sanitary code was adopted by the County Legislature. The code delegates to the commissioner of health “the authority to require and order that Fluorine Compounds be added to any or all the public water supply serving the County of Onondaga” (Onondaga County Sanitary Code, art. III, § B).
The County's authority to supersede the provisions of the Public Health Law derives from the home rule provisions of the State Constitution (N.Y. Const., art. IX) and the County Charter Law (Municipal Home Rule Law, art. 4, part 1). The home rule provisions of the Constitution “evince a recognition that essentially local problems should be dealt with locally and that effective local self-government is the desired objective” ( Matter of Kelley v. McGee, 57 N.Y.2d 522, 535, 457 N.Y.S.2d 434, 443 N.E.2d 908). Article IX contains a “Bill of rights for local governments” which provides that counties “shall be empowered by general law...to adopt, amend or repeal alternative forms of county government” (N.Y.Const., art. IX, § 1 [h][1]). Municipal Home Rule Law § 33(4)(a) provides that a county shall have the power to adopt a county charter which may “assign executive or administrative functions, powers and duties to elective or appointive officers.” The Court of Appeals has stated that the history of these home rule provisions “demonstrates the evolution of county governments from their previous status as administrative arms of the State to their present status as more autonomous units of local government” and that “[t]he power granted to counties over the nature and functions of its local offices is a significant one, extending even to the power to abolish those offices under certain circumstances” ( Matter of Kelley v. McGee, supra, p. 536, 457 N.Y.S.2d 434, 443 N.E.2d 908). However, “[i]t is well established that the home rule provisions of article IX do not operate to restrict the Legislature in acting upon matters of State concern” ( Matter of Kelley v. McGee, supra, p. 538, 457 N.Y.S.2d 434, 443 N.E.2d 908) and that “[s]o long as there exists a substantial degree of State interest in the subject matter of the legislation, evidence of local concern is of no consequence” ( Matter of Radich v. Council of City of Lackawanna, 93 A.D.2d 559, 566, 462 N.Y.S.2d 928, affd. 61 N.Y.2d 652, 472 N.Y.S.2d 82, 460 N.E.2d 223). Thus, in any case arising under article IX the test for resolving conflicts between State legislation and charter law is whether the State enactment reflects “an appropriate level of State interest” ( Matter of Kelley v. McGee, supra, 57 N.Y.2d p. 540, 457 N.Y.S.2d 434, 443 N.E.2d 908) in a subject matter “of sufficient importance to the State generally to render it a proper subject of State legislation” ( Matter of Kelley v. McGee, supra, p. 538, 457 N.Y.S.2d 434, 443 N.E.2d 908) that it may not be superseded by inconsistent county charter law.
Municipal Home Rule Law § 34 imposes express limitations on the powers of counties to adopt charters or charter law; however, the Public Health Law is not “included among the chapters [of the consolidated laws] which ‘charter’ counties are prohibited from superseding” ( Nydick v. Suffolk County Legislature, 81 Misc.2d 786, 790, 367 N.Y.S.2d 632, affd. 36 N.Y.2d 951, 373 N.Y.S.2d 554, 335 N.E.2d 858). Since “[t]he restrictions on the power to adopt charters...do not encompass a requirement of consistency with general law” ( Matter of Heimbach v. Mills, 67 A.D.2d 731, 732, 412 N.Y.S.2d 668), except through Municipal Home Rule Law § 34, it follows that county charter law may be superior to the provisions of the Public Health Law especially where, as here, the conflict concerns matters of administration and procedure. That public health and safety are matters of State-wide importance is beyond cavil (see, Matter of Kelley v. McGee, supra, 57 N.Y.2d p. 538, 457 N.Y.S.2d 434, 443 N.E.2d 908; Adler v. Deegan, 251 N.Y. 467, 167 N.E. 705) and it is obvious that a local government should not be allowed to ignore substantive requirements of the Public Health Law and the State Sanitary Code intended to protect the health of all the citizens of the State. On the other hand, the administration of a county health district is a matter of local concern. The Public Health Law in its present form does not reflect a sufficient level of State interest in the subject to warrant the conclusion that the Legislature considers the organization and administration of county health districts a matter of State concern (see, e.g., Public Health Law § 347[1][a]; § 351; § 353[3][a], [4]).
The Villages' additional claim that the Commissioner did not comply with the requirements of the State Environmental Quality Review Act (ECL, art. 8) is without merit. The effect of the Commissioner's orders is to require that application be made to the State for permission to add fluoride to the water. He cannot compel the addition of fluoride absent the approval of the State Commissioner, nor does he have any responsibility to choose a particular method for adding the compounds. Although the Commissioner's policy decision that fluoridation is in the best interest of village residents undoubtedly constitutes an “action” under SEQRA (see, 6 NYCRR 617.2[b][2], [3] ), it qualifies as “routine or continuing agency administration”, a Type II action (6 NYCRR 617.13[d][15] ) which does not require any procedure under SEQRA (6 NYCRR 617.13[a] ).
Accordingly, the order dismissing the petition should be affirmed.
Judgment unanimously affirmed without costs.
CALLAHAN, J.P., and DOERR and BOOMER, JJ., concur.